The Path Choice Of Spousal Gift Relationship Law Application

In practice,it is not uncommon for couples to give property to their partners to show their love.However,after the emotional heated period into the contradictory period,facing the breakdown of marriage relationship,complex property disputes arise.The gift between husband and wife is the manifestation of the concept of autonomy of private law in the marital life.It involves personal relationship and can apply the relevant rules of marriage and family in the Civil Code.If it involves property relations,the relevant rules of the real right section and the contract section of the Civil Code can be applied.The concurrence of identity law and property law appears in the application of donation relationship law between husband and wife,which causes the phenomenon of law application in judicial practice.Whether the donor has the right of revocation is determined by applying the provisions of the contract on the ordinary gift or the provisions of the marriage and family on the conjugal agreed property system.In this regard,the theory is divided into three schools:the general gift theory,the marital property agreement theory,the marriage based special gift theory,each school has their own words,but the three theories have failed to provide a thorough value judgment and complete logic foundation for the application of law.In order to solve the problem of non-uniform application of the law of gift contract between husband and wife,reduce the phenomenon of different judgment in the same case.The author puts forward the identity consequence theory,insisting that the gift contract between husband and wife is the identity contract based on the marriage relationship,directed by the real meaning of the husband and wife,and aimed at the pursuit of identity effect.Different from the ordinary gift contract,the identity contract is the fundamental attribute of the gift contract between husband and wife.With the identity of husband and wife relationship as the premise,the gift is the husband and wife of the arrangement of marriage life together,the reasonable distribution of the fruits of labor obtained by the husband and wife cooperation.The purpose of the gift between husband and wife is to maintain the healthy operation of the marriage,the surface is non-compensable,in essence,the recipient often bear the same consideration.Therefore,the legal relationship of donation between husband and wife has distinct identity characteristics and family ethics.It should be combined with the facts of the case to analyze the difference between the expectations and assumptions of the husband and wife to conclude the gift contract on different occasions,so as to identify the potential true agreement of the parties.Subjectively,explore whether the real purpose of the gift has been realized in the gift contract between husband and wife.Objectively,it measures whether the donee has paid consideration and the degree of consideration,so as to determine whether the donee can exercise the revocation right.The combination of subjective and objective can solve the problem of the ambiguity and vagueness of the contract in theory,and strive to achieve the legal effect that the objective behavior consequences are consistent with the subjective expression of intention.In terms of legal effect,it jumps out of the problem of one-way selection and application of legal relationship between ordinary gift theory and marital property agreement theory.Starting from the behavior itself,it mainly focuses on the consideration of identity effect and human ethics effect of gift contract between husband and wife,and constructs special rules on family law.The basic idea of the law application of gift contract between husband and wife is divided into two situations:one is the priority of the application of identity laws,the other is the limitation of the application of property laws.This paper analyzes the nature and effectiveness of the gift contract between husband and wife,and constructs the ideographic typing path with the help of typing thinking.Taking expression of intention as the classification standard of legal acts: After the "true expression of intention" and "whether the donee pays the same consideration" between couples are included into the legal evaluation standard,the different legal effects of different types are discussed according to the different division of the parties’ expression of intention.When the donor realizes the subjective purpose or the donee pays reasonable consideration,the status law applies,and the doctrine of creditor’s right is used to exclude the application of arbitrary revocation right.Only when the donor clearly states that it is a free gift,and voluntarily makes a free gift to the other party even after divorce,can it be recognized as an ordinary gift contract.The donor shall have the right to revoke the property at will before it is delivered or registered for transfer.If the donee has a major fault that causes the marriage to break up in a short time,the donor can invoke the statutory right of revocation in the gift law.If both parties do not have marriage fault,the donee request divorce,then the donor can invoke the case change rules,request to change the content of the contract.If both parties are at fault leading to divorce,the damage compensation principle of the civil law of fault compensation should be applied,and factors such as the degree of fault of both parties,the duration of the gift since divorce,the duration of marriage,the financial status of both husband and wife,the family division of labor and the purpose of the gift should be considered comprehensively.By taking these factors into consideration,the judge should be given certain discretion.In order to achieve the objective behavior consequences and subjective expression of the same legal effect.