论单方撤销夫妻共同赠与的效力

发布时间：2018-04-26 21:34

本文选题：共同赠与 + 单方撤销　；参考：《浙江大学》2017年硕士论文

【摘要】：近年来,夫妻双方在婚姻关系续存期间,将共同共有的财产赠与子女或者其他第三人的现象大量存在现实生活中。然而,在赠与之后,赠与其中一方反悔,希望撤销原先的赠与,而夫妻另一方表示不同意撤销赠与或者不表示撤销赠与。在这种情况下,一方是否有权撤销双方共同赠与合同是当今司法实践中具有分歧的一个问题。本文在查阅了大量案例后,总结发现在现今法院对单方撤销共同案件处理主要有三种处理意见。第一种意见认为,该赠与合同合法有效,在缺乏共同共有人双方的合意的情况下不能撤销房屋赠与合同。第二种意见认为,赠与合同只要未发生我国《合同法》上规定的赠与合同不可撤销的法定情形,根据《合同法》的规定,赠与方具有任意撤销权和法定撤销权,因此可以自由撤销该该赠与合同。第三种意见认为,赠与合同可以部分撤销。对于夫妻的共同共有财产,夫妻一方有权对赠与合同主张撤销,但是由于另一方并没有撤销合同,因此单方只能主张撤销自己的部分,即单方有权撤销自己份额部分。由上可知,在对于单方是否有权撤销夫妻共同赠与的纠纷中,法官的法律适用、审判思路都有着明显的不同,因此导致了单方撤销夫妻赠与在当今的审判实务中产生这一系列的法律问题。除引言和结语以外,本文共三个部分。第一部分是作者在查阅多个案例后,总结当前存在的关于单方撤销共同赠与的同案异判案件,从而对法官的审理思路和法律逻辑以及审判结果进行评述和总结。第二部分本文将对单方撤销夫妻共同赠与合同行为从法理层面进行分析,本文将分析《合同法》中撤销赠与的条款在此类案件适用上的局限性,以及因为夫妻共同意思表示对单方撤销夫妻共同赠与的限制。在此基础上,本文将在第三部分提出对单方撤销夫妻共同赠与案件的处理构想和司法建议,从而希望统一司法实践,减少同案异判的结果,维护婚姻家庭稳定,维护司法尊严与权威。
[Abstract]:In recent years, the phenomenon that husband and wife give their common property to their children or other third parties in the period of the continuation of marriage exists in a large number of real life. However, after the gift, one of the giveaways reneged, wishing to withdraw the original gift, while the husband and wife indicated that they did not agree to withdraw the gift or did not signify the withdrawal of the gift. In this case, whether a party has the right to revoke the joint gift contract between the two parties is a matter of disagreement in judicial practice today. After consulting a large number of cases, this paper concludes that there are three kinds of opinions on unilateral revocation of joint cases. The first view is that the donation contract is legal and effective and can not be revoked without the mutual agreement of the joint owners. The second view is that, as long as the legal situation of irrevocable donation contract stipulated in the contract Law of China does not occur, the donator has the right of arbitrary cancellation and the legal right of rescission according to the provisions of the contract Law. The gift contract is therefore free to be revoked. The third view is that the gift contract can be partially revoked. For the joint property of husband and wife, one spouse has the right to revoke the gift contract, but because the other party does not cancel the contract, the unilateral party can only claim to revoke its own part, that is, the unilateral party has the right to revoke its own share. From the above, we can see that in the dispute about whether a unilateral party has the right to revoke the joint gift of husband and wife, the application of the law and the way of thinking of the judge are obviously different. Therefore, this series of legal problems arise in the judicial practice of unilateral revocation of husband and wife gift. In addition to the introduction and conclusion, there are three parts of this paper. The first part is the author, after consulting many cases, summarizes the existing cases about the unilateral revocation of common gifts in the same case and different judgments, and then comments and summarizes the judges' thinking and legal logic as well as the trial results. The second part of this paper will be the unilateral revocation of the husband and wife joint gift contract behavior from the legal level analysis, this article will analyze the contract law in the withdrawal of the gift provisions in such cases, the limitations of the application. And because the husband and wife common intention to unilaterally cancel the husband and wife joint gift restrictions. On this basis, in the third part, this paper will put forward the conception and judicial suggestion on the unilateral revocation of the joint gift case between husband and wife, so as to unify the judicial practice, reduce the result of different judgments in the same case, and maintain the stability of marriage and family. Uphold the dignity and authority of the judiciary.
【学位授予单位】：浙江大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6

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