On The Exclusion Of Arbitrary Right Of Rescission Of Gift Contract Between Relatives By Moral Obligation Nature

Arbitrary right of rescission of gift contract is always the theoretical hotspot and judicial judgment difficulty.Through the statistics of the cases of arbitrary revocation disputes of gift contract,author finds out that most arbitrary revocation disputes of gift contracts occur among relatives and whether the gift that parents give to minor offspring when they divorce and the gift contract between relatives belong to "moral obligation nature" gift,which judges have different affirmation on,so it is prone to appear similar cases with inconsistent judgments.Based on this,through the paraphrase of the gift of moral obligation nature and the analysis of concrete types in judicial judgment,author provides judicial adjudication advice on the concrete affirmation of "nature of moral obligation" gift encountered during judicial adjudication in future,and analyzes legislative function orientation that legislation has on such disputes and social effect caused by legal practice in accordance with referee.The introduction proposes the intention of this article,and the text is divided into four parts.Part I legal sources and rights attributes of arbitrary rescission right of gift contract.Through studying the essential characteristic of gift contract,this paper probes into the legal source of arbitrary right of rescission namely free nature,consensual characteristic,profit inclination and asymmetry of rights and obligations.Through theoretical interpretation of moral obligation nature and extra-legal context interpretation,its meaning can be defined in article 186 of contract Law.Part II through the sample description of sampling cases,the paper shows that the number contract of donation between relatives far exceeds the number of contract of donation among other entities.In addition,the paper screened out the main factors of the controversy in the nature of “moral obligation” contract of donation disputes and conducted in-depth analysis.Part III exclusion of the right of arbitrary rescission of gift contract among relatives in judicial application.According to the case statistics of disputes of the right of arbitrary rescission of gift contract in China's judicial adjudication documents network,the author analyzes which cases belong to the gift of gift contract "moral obligation nature" among relatives,which cannot be arbitrarily revoked,and which do not belong to the gift of gift contract "moral obligation nature" among relatives,which can be revoked arbitrarily and conducted analysis.Part IV "moral obligation nature" analyzes the function of arbitrary right of rescission exclusion of gift contract among relatives.According to the above explanation and classification analysis of the gift of "moral obligation nature",this paper analyzes concretely legislative function orientation occurred in such disputes and social effect caused by judicial adjudication.It is concluded that the nature of “moral obligation” gifts,which the grantor may not arbitrarily withdraw before the transfer of property,mainly includes: gifts given by the parents in the divorce agreement for the minor children and the relatives who have no obligation to support them;The types of gifts that do not qualify as “moral obligation” include parents' gifts to adult children,mutual gifts between relatives of peers,and mutual gifts during the marriage of a spouse.Gifts can be arbitrarily withdrawn from the recipient before the transfer of assets.