Research On The Legal Application Of Real Estate Donation Between Couple

With the change of social concept and the sharp appreciation of real estate,the litigation caused by the gift of real estate between husband and wife is becoming more and more common.Couple’s real estate gift is an agreement with special personal relationship concluded between husband and wife with the content of property ownership.It has the dual attributes of identity and property.China’s current legislation and relevant judicial interpretations can not answer the legal nature and application of couple’s real estate gift agreement,and the judicial practice and academic theory have not formed a unified conclusion.In the trial practice,Chinese courts basically determine the nature of different donation share types according to article 1065 of the Civil Code and Article 32 of interpretation(I)of the Supreme Court on Marriage and Family,and then choose the legal application of status regulations or property law rules.On this basis,the Court selected the legal application of the rules of identity law or property law.However,the existing judgment shows that not only the qualitative of couple’s real estate gift in various cases is difficult to be unified,but also there is a trend of expanding the application of the rules of property law.The fundamental reasons are: firstly,the current legislation lacks complete and detailed provisions on the agreed property system between couples;secondly,the adjudication process attaches importance to the efficiency value of property law and ignores the ethical value of identity law.There are theoretical disputes among general gift theory,marital property contract theory and special gift theory(including special gift theory in the sense of debt law and special gift theory based on marriage).From different theoretical points of view,the general grant and the theory of matrimonial property agreement are not enough to summarize the particularity of marital real estate gift;From the perspective of trial practice,these two theories will produce "all or nothing" case trial results,which is difficult to fundamentally resolve the couple’s real estate gift disputes and achieve the goal of maintaining the harmony and stability of marriage and family.It is worth paying attention to the theory of special gift based on marriage,which is a necessary understanding of couple’s real estate gift combined with theory and practice.It not only has strong theoretical support,but also meets the practical needs in practice.There are applicable difficulties in any theory,and the theory of special gift based on marriage is no exception.However,it provides a way to maintain the core concept of modern marriage and family and coordinate the internal conflicts of the existing legal system.Specifically,in the judicial treatment of husband and wife’s real estate gift,it is necessary to condense the identity ethics consensus: promote the equality and unity of internal relations of marriage and family,respect the expression of true will between husband and wife and family autonomy;At the same time,to balance the interests of all parties and achieve a balance of interests between the third party inside the couple and the third party outside the couple.