The Nature And Systematic Interpretation Of The Real Estate Gift Agreement Between Husband And Wife

In practical life,the act of one spouse gifting the other party’s real estate based on the good expectation of maintaining the marriage life should not be directly recognized as a gift.A gift can only be recognized as a gift if it is expressly given.The core of the disputes between "gift" and "contract on property by husband and wife" is that scholars have different understandings and choices of the legislative model of the system of property by husband and wife in my country.According to the legislative evolution and current legal provisions,the property system of husband and wife agreement in my country is an "original" legislative model,that is,on the premise of not violating the mandatory provisions of the law and public order and good customs,the parties can freely negotiate the type and specific content of the property system to be applied.Therefore,in addition to the parties expressly stating that it is a "gift",the real estate gift agreement between husband and wife should first be identified as "the husband and wife agree on a property system contract",which can also better maintain the special identity relationship of spouses.In terms of legal application,the gift of real estate between husband and wife shall be governed by the provisions of Article 1065 of the Civil Code of the People’s Republic of China（hereinafter referred to as the "Civil Code"）on the property system agreed upon by husband and wife.The change of the real right of the gifted real estate takes effect as long as the parties have the agreement of the creditor’s rights,and there is no need to perform the registration or delivery procedures,but the change of the real right without registration shall not be against a bona fide third party.This can effectively solve the particularity of the validity of property-based contracts,and can better protect the legitimate rights and interests of bona fide third parties.However,since Article 1065 of the Civil Code does not stipulate the legal consequences of violating the property system agreed upon by husband and wife,when there is a dispute over the gift of real estate between husband and wife,the donor can invoke Article 533 of the Civil Code to remedy his rights.After the gift occurs,if the donated party encounters the circumstances stipulated in Article 663 of the Civil Code,the donor may also exercise the statutory right of revocation by referring to the provisions of this article.Judges’ discretion is also an important means of handling marriage and family disputes.In addition,if the party expressly makes a gift,the relevant provisions on gifts may apply.