The Effectiveness Of The Provisions Of Giving Children Real Estate In Divorce Agreement

Recently,according to the China business information network,marriage registration agencies across China handled 10.631 million marriage registrations in 2017,which was 7.0% lower than the previous year.In the first quarter of 2018,3.017 million couples registered for marriage nationwide,down 5.7% from the same period last year.It is not hard to see from the above data that the number of marriages has decreased in recent years.But the number of divorcing couples in China has been increasing in recent years,with 4.374 million couples going through divorce procedures according to law in 2017,an increase of 5.2 percent over the previous year.Among them,3.704 million couples divorced peacefully through agreement,and 669,000 couples divorced through court decisions or mediation.The divorce rate was 3.2 per 1,000 people,0.2 points higher than the previous year.According to the above data,the number of people who choose to divorce by agreement is about 5.5 times that of those who choose to divorce by litigation.Most be in the husband and wife of divorce phase often insufficient reason,to achieve the purpose that divorces as soon as possible,both sides often husband and wife is Shared or the house property that husband and wife one party owns bestow the children that both sides gives birth to.However,the two sides in the marriage after the dissolution of the relationship,there will often be one of the parties to the property has not yet been registered for the transfer of the request to exercise the right to revoke.On the question of whether or not to allow cancellation,scholars often have different understanding of the theoretical circle and judicial practice,there is also a debate,but most of the court's decision tend not to allow cancellation,its logical reasoning and judgment according to the thought that the special period of donative behavior is different from general donative,because involves identity attribute and moral attribute,so do not exercise any cancellation right.This article combines the real cases in judicial practice to explore the effectiveness of the real estate clauses in the divorce agreement that parents give to their children in order to expect some benefits to the settlement of such cases.This paper is divided into five parts,about 33,000 words.The first part,through the analysis of typical cases in judicial practice,summarizes the focus of the thesis and raises questions.The second part,in view of the special period of real estate bestowal behavior can be revoked,first of all,the author tries to theoretically analyze the different legal views of Chinese scholars and the reasons for their different views.In addition,the author will combine the typical cases of Chinese online judgment documents to discuss the rules and ideas of judgment in the actual trial.Combined with the above comprehensive evaluation of the author will be their views on the elaboration.The third part,through the analysis of the above content,on the divorce agreement in terms of whether the parents gift to their children can be revoked specific analysis.First of all,the author re-examined the nature of property gift in the divorce agreement,and made it clear that the property clause of parents' gift to children in the divorce agreement has the characteristics of identity attribute,property attribute and moral attribute,which is different from the general gift contract.Through the analysis of the legal nature of this gift,we can get the applicable law of the property gift clause.By means of incomplete enumeration,this paper analyzes the reasons why the estate gift clause is irrevocable in principle and the special circumstances that can be revoked.The fourth part puts forward Suggestions on the regulation and improvement of the real estate clauses of parents' gift to children in divorce agreements,such as establishing the gift notarization system,improving the legal system,and strengthening legal publicity and education.It further demonstrates that the arbitrary revocation of this special gift should be regulated by law,and puts forward Suggestions on the principles to be adhered to and the improvement measures to be taken,in the hope of providing strong help for the court to try relevant cases.The fifth part,as the end of this paper,the author will make a summary analysis of the judicial practice cases mentioned at the beginning of the paper,and analyze the rationality of the court decision.Through the analysis of this case,the author's views and basis in this paper are clarified again.