Research On The Legal Application Of The Clauses On Giving Property To Children In Divorce Agreement

The second paragraph of Article 464 of the Civil Code of China stipulates that when there are no clear provisions in the identity relationship agreement,the relevant provisions of the contract can be applied by reference based on the nature of the agreement.The provision for giving children property in a divorce agreement involves both identity and property attributes,and is a mixed identity and property agreement.Due to the lack of specific regulations in the current law of our country regarding the identity and property mixed agreement,there is a significant dispute whether disputes arising from this provision should be governed by the Marriage and Family Code and its judicial interpretation or by reference to the Contract Code.In judicial practice,the application of the law varies,and there are situations where different judgments are made in the same case and the same judgment is not the same.After sorting out a large number of judicial cases,this article finds that there are four main types of disputes arising from this provision: 1.Whether parents can apply the arbitrary revocation right stipulated in Article 658 of the Contract Part of the Civil Code to revoke the transfer of children’s property;2.Whether the child has the independent right to request the parents to fulfill the assignment agreement;3.Whether the creditor can revoke the assignment on the ground of infringing its creditor’s rights;4.Can the child’s interest in the terms of the assignment exclude enforcement by the creditor.The determination of the legal nature of this provision is the key to resolving whether parents can exercise the right of arbitrary revocation and whether children have the right to independent claims.Through the academic theory and judicial practice of the court trial results,the qualitative gift contract theory,the overall divorce agreement theory,and the third party benefit contract theory are the mainstream views.A qualitative gift contract may be subject to arbitrary revocation rights if it is a general gift;If it is a special gift,such as a moral gift,a purpose gift,etc.,it is irrevocable.As a party to the gift contract,children enjoy independent claims.However,by examining the integrity of the divorce agreement,although many of the terms are "gifts",they are not gifts.The overall view of the qualitative divorce agreement is that the provisions of Articles 69 and 70 of the Judicial Interpretation I of the Marriage and Family Code of the Civil Code are directly applicable.After divorce,when there are no reasons for fraud,coercion,etc.,it is not allowed to revoke the agreement,and children do not have the right to independent claims because they are not parties to the agreement.However,the provisions of Articles 69 and 70 are only applicable to both divorced couples,ignoring the beneficiary of the transfer agreement,namely,the child.Qualitative third party benefit contracts can reasonably interpret the legal relationship between divorced couples and between spouses and children.The parental revocation right should be limited after the child has accepted the expression of intent,but if the parents’ economic situation significantly worsens,etc.,the principle of change of circumstances can be applied to revoke the assignment.At the same time,according to the second paragraph of Article 522 of the Civil Code of China,children can be granted the right to fulfill their claims.When it comes to external creditors,whether the creditors have the right to withdraw and whether children can be excluded from enforcement needs to be analyzed based on the specific circumstances of the case.The parents’ agreement to transfer their children’s property after the formation of the creditor’s rights and harmful to the creditor’s rights can usually be allowed to be revoked.When determining whether children can be excluded from compulsory execution,the principle of property publicity should be adhered to,and comprehensive judgments should be made based on factors such as survival interests and the nature of creditors’ rights.It is necessary to avoid parents using this clause as a means to maliciously transfer property,and it is also necessary to pay attention to safeguarding the interests of vulnerable groups such as underage children.