我国夫妻间赠与法律问题研究
发布时间：2018-11-24 09:26
【摘要】：由于夫妻之间特有的人身关系,夫妻间互相赠与财产的情况时有发生。随着人们物质生活的日益丰富,夫妻间赠与的情形越来越复杂,围绕着它的纠纷也渐渐增多。然而由于目前我国对夫妻间赠与并没有一个明确的定性,导致实践中法律适用十分的混乱。并且由于法律赋予了夫妻间赠与人一方在赠与物所有权转移之前任意撤销的权利,这更是引起了人们的激烈讨论。所以本文希望通过对我国夫妻间赠与相关法律问题的研究,可以对解决司法实践中夫妻间赠与的相关争议产生一定的作用。夫妻间的赠与是指夫妻关系成立之后或即将成立时,一方无偿让渡其个人财产的全部或部分所有权,使其为另一方所有或双方共有的财产的法律行为。夫妻间赠与不同于一般赠与也区别于夫妻财产制约定,应被定性于区别于一般赠与的特殊赠与。目前我国关于夫妻间赠与的相关法律规定主要体现在《最高人民法院关于中华人民共和国婚姻法若干问题的解释(三)》(以下简称《婚姻法司法解释(三)》)第六条,该条赋予夫妻间赠与赠与人任意撤销权是为了解决实践中夫妻间赠与房产归属的问题。然而目前我国司法实践中有将该条规定的适用范围扩大到夫妻间其它物品的赠与的趋势,争议的标的一般为像汽车这种价值较大的财产。并且该条规定也不符合婚姻法的立法精神,会损害受赠方的权利。因此,任意撤销权制度并不能根本解决夫妻间赠与的问题,应寻求其它更加合理的制度。近年来我国有将德国的法律行为基础障碍制度应用于我国夫妻间赠与的声音,笔者认为这是一个可供我国借鉴的方法。德国将法律行为基础障碍制度适用于解决夫妻间的赠与问题,它规定了当夫妻赠与的基础不在存在时,即夫妻间未缔结婚姻或离婚时,若不能合理期待赠与人继续履行赠与合同的义务,夫妻间赠与人一方可以依据德国民法典第313条第一款对赠与合同内容进行调整,而在不能苛求当事人调整合同时,允许赠与人依据第三款解除赠与合同。法律行为基础障碍制度相较于任意撤销权制度在解决夫妻间赠与问题上更加灵活,能够真正平衡夫妻间的权益。
[Abstract]:As a result of the special personal relationship between husband and wife, the couple gives property to each other from time to time. With the increasing enrichment of material life, the situation of gift between husband and wife is becoming more and more complicated, and the disputes around it are also increasing. However, there is no clear definition of the gift between husband and wife in our country, which leads to the confusion of the application of the law in practice. And because the law gives the spouse the right to revoke the right before the transfer of the title of the gift, this has aroused heated discussion. Therefore, this paper hopes that through the study of the legal issues between husband and wife gift in China, it can play a certain role in resolving the disputes between husband and wife gift in judicial practice. The gift between husband and wife refers to the legal act of transferring all or part of their personal property without compensation after the establishment of the relationship between husband and wife or when it is about to be established so that it is the property owned by the other party or shared by both parties. The gift between husband and wife is different from the general gift and also different from the agreement of the husband and wife property system, and should be characterized by the special gift which is different from the general gift. At present, the relevant legal provisions on the gift between husband and wife in China are mainly embodied in Article 6 of the interpretation of certain issues concerning Marriage Law of the people's Republic of China by the Supreme people's Court (hereinafter referred to as the Judicial interpretation of the Marriage Law (3). The purpose of this article is to solve the problem of property ownership between husband and wife. However, there is a tendency to extend the scope of application of this provision to the gift of other items between husband and wife in the judicial practice of our country at present. The object of dispute is generally the property of great value such as automobile. It also does not conform to the legislative spirit of the Marriage Law and damages the rights of the grantee. Therefore, the system of arbitrary rescission can not fundamentally solve the problem of gift between husband and wife, and should seek other more reasonable system. In recent years, our country has applied the German legal behavior foundation barrier system to our country husband and wife gift voice, the author thinks this is a method which can be used for reference in our country. Germany applies the system of basic obstacles to legal conduct to solve the problem of gifts between couples, which provides that when the basis of the gift does not exist, that is, when the husband and wife are not married or divorced, If the donor cannot reasonably be expected to continue to perform the obligation of the donation contract, the donator may adjust the contents of the donation contract in accordance with the first paragraph of Article 313 of the German Civil Code, and if the parties cannot be required to adjust the contract, The donator is allowed to terminate the donation contract in accordance with paragraph 3. The basic obstacle system of legal behavior is more flexible than the system of arbitrary rescission right in solving the problem of gift between husband and wife, and it can truly balance the rights and interests between husband and wife.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923.9
本文编号：2353135
[Abstract]:As a result of the special personal relationship between husband and wife, the couple gives property to each other from time to time. With the increasing enrichment of material life, the situation of gift between husband and wife is becoming more and more complicated, and the disputes around it are also increasing. However, there is no clear definition of the gift between husband and wife in our country, which leads to the confusion of the application of the law in practice. And because the law gives the spouse the right to revoke the right before the transfer of the title of the gift, this has aroused heated discussion. Therefore, this paper hopes that through the study of the legal issues between husband and wife gift in China, it can play a certain role in resolving the disputes between husband and wife gift in judicial practice. The gift between husband and wife refers to the legal act of transferring all or part of their personal property without compensation after the establishment of the relationship between husband and wife or when it is about to be established so that it is the property owned by the other party or shared by both parties. The gift between husband and wife is different from the general gift and also different from the agreement of the husband and wife property system, and should be characterized by the special gift which is different from the general gift. At present, the relevant legal provisions on the gift between husband and wife in China are mainly embodied in Article 6 of the interpretation of certain issues concerning Marriage Law of the people's Republic of China by the Supreme people's Court (hereinafter referred to as the Judicial interpretation of the Marriage Law (3). The purpose of this article is to solve the problem of property ownership between husband and wife. However, there is a tendency to extend the scope of application of this provision to the gift of other items between husband and wife in the judicial practice of our country at present. The object of dispute is generally the property of great value such as automobile. It also does not conform to the legislative spirit of the Marriage Law and damages the rights of the grantee. Therefore, the system of arbitrary rescission can not fundamentally solve the problem of gift between husband and wife, and should seek other more reasonable system. In recent years, our country has applied the German legal behavior foundation barrier system to our country husband and wife gift voice, the author thinks this is a method which can be used for reference in our country. Germany applies the system of basic obstacles to legal conduct to solve the problem of gifts between couples, which provides that when the basis of the gift does not exist, that is, when the husband and wife are not married or divorced, If the donor cannot reasonably be expected to continue to perform the obligation of the donation contract, the donator may adjust the contents of the donation contract in accordance with the first paragraph of Article 313 of the German Civil Code, and if the parties cannot be required to adjust the contract, The donator is allowed to terminate the donation contract in accordance with paragraph 3. The basic obstacle system of legal behavior is more flexible than the system of arbitrary rescission right in solving the problem of gift between husband and wife, and it can truly balance the rights and interests between husband and wife.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923.9
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