Research On The Legal Application Of The Gift Between Husband And Wife

The 6^thArticle of the Judicial Interpretation III of Marriage Law is about whether the rules of the Contract Law can be applied to the donation of real estate between husband and wife.According to the guidance of this article,the basic principles of the donation contract in the contract law are extended to be used in the property relationship between husband and wife.When the formalities for the transfer of real estate have not been handled,the donator in the husband and wife has the right of arbitrary cancellation,and the ownership of the disputed real estate does not change.The 19^thArticle of the Marriage law is about the provisions of the property agreement between husband and wife.According to the guidance of this article,the agreement between husband and wife on the property acquired during the period of marriage and the property before marriage is binding on both parties and can be directly used as the basis for confirming the property ownership.In view of the legal act that one spouse transfers property to the other without compensation,marriage law,contract law and property law will have different legal application effects.Based on the analysis of the current situation and reasons of the legal application of the cases involving the gift between husband and wife in recent three years,the property agreement between husband and wife shows the characteristics of the diversity of the subject property,the complexity of the agreed content and the close relationship with the marriage.For the above-mentioned marital property agreement,there are different natures in the judicial judgment,and it focuses on the situation that one party's personal property is agreed to be jointly owned by both husband and wife?one party to both parties?and the property jointly owned by both husband and wife is agreed to be owned by one party?both parties to one party?.The main reasons are that there are different understandings about the nature of the donation between husband and wife,the relationship between the donation between husband and wife and the agreed property system of husband and wife,and the rules of property right change of the agreed property system of husband and wife.The concept of the gift between husband and wife originates from the gift contract,including the two situations that one party's personal property is agreed to be owned by the other party,and the other party's personal property is agreed to be owned by the husband and the wife.Because it occurs between special status related persons,it is different from the general gift,which has an applicable impact on the free gift contract,the characteristics of the single business and the conditions for the exercise of the right of arbitrary revocation.The"marriage based"special gift is not in line with the current legislation of the contract law of China,and it is a strong drafting of the parties'will,which will lead to the ownership of the gift in an unstable state,so the gift between husband and wife is not a special gift.China's husband and wife agreed property system is an original one,its content includes the agreement for specific property,and the gift between husband and wife should belong to China's husband and wife agreed property system.It is significant to distinguish the disposition of the special personal property under the separate property system and the common property system.The 6^thArticle of the Judicial Interpretation III of Marriage Law should be strictly applied,and attention should be paid to the exercise rules of the original right of real estate,the expression of donation intention and the right of arbitrary revocation.Because this article makes the marriage and family legislation lose the characteristics of its identity,as the property agreement between husband and wife,the application of the gift between husband and wife should be unified with the husband and wife agreed property system,should adopt the property right change mode of creditor's rights doctrine,once the agreement between husband and wife on the ownership of husband and wife property takes effect,the legal effect of property right change will occur.As the property agreement between husband and wife,the applicable rules of the gift between husband and wife should be unified with the property system agreed by husband and wife,which is embodied in the property right change mode of creditor's rights doctrine.At the same time,the application of property law rules should be gradually restricted in trial practice,through the two perspectives of motivation and overall investigation,to identify the gift behavior between husband and wife"to achieve the effect of general property law".