A Study On The Legal Application Of The Provisions On The Property Of Children In Divorce Agreements

Divorce agreement refers to the husband and wife who establish a legal marriage relationship,when the two parties want to dissolve the marriage relationship,after consultation between the two parties,on the status of the relationship between the husband and wife and property relations to reach an agreement.In the divorce agreement,it is agreed that the property owned by one party or shared by the husband and wife shall be owned by the children,so that the marriage can be dissolved smoothly.It also contains the concession to one party to fulfill the maintenance obligation and other factors,which contains both specific purpose and certain identity attributes.In addition,it contains certain attributes of moral obligation and therefore can not directly apply the relevant provisions of the general gift contract.In the judicial practice of our country,there are a large number of parties after the purpose of dissolution of marriage has been achieved,because of various reasons to request the court to cancel the gift,or because of the divorce after the delay in the registration of property rights change and other reasons disputes.However,when different courts decide similar cases,the result is inconsistent,and there are disputes in the application process.The author believes that the gift of children in the divorce agreement is different from the general gift contract,should be a part of the divorce agreement,and the divorce agreement as a whole,taking into account the purpose of this clause agreed by the husband and wife at the time of divorce,according to the claims of the parties and the relevant evidence provided,comprehensive determination of whether to allow revocation and the application of the law to resolve such disputes.Therefore,this paper will analyze the legal nature and effect of this gift from the perspective of judicial practice,summarize the problems existing in the application of the law in practice,and make a targeted analysis to solve the problem of the legal application of the parents' gift clause to their children in divorce agreement.This article is divided into six parts:The first part is the introduction.case to lead to the problem,and the research background and significance are introduced.The second part mainly introduces the theoretical dispute about the property provision of children in divorce agreement.Analysis of the main views on the nature of this clause,there are "conditional gift contract theory "," purpose gift theory "," contract theory to perform to a third party," divorce agreement as a whole" and "property settlement theory ";secondly,the divorce agreement in the gift of children's property the effectiveness of the discussion.The third part examines the foreign legislation of the divorce agreement on the gift of children's property,briefly introduces and analyzes the relevant provisions of Japan,France,Germany and Taiwan in China,and provides an extraterritorial experience reference for solving the problem of the gift of children's property.The fourth part analyzes the present situation of the children's property donated in the divorce agreement,discusses it from the legislative level and the judicial level respectively,combines the relevant cases in the judicial practice,puts forward the problems existing in the application process of the children's property donated in the divorce agreement in our country.The fifth part puts forward some suggestions,including adhering to the principle of protecting children's interests;clarifying the nature of the property clause in the divorce agreement;applying the relevant laws according to the purpose of the divorce agreement when it is concluded and exploring the path of the children's claim.The sixth part is the conclusion.