夫妻赠与房产法律适用研究

发布时间：2018-11-18 15:32

【摘要】：随着我国综合实力的增强,居民财富的不断增加,房产已变成一个家庭不可或缺的财产,特别是对于即将缔结婚姻或处在婚姻危机的夫妻双方来说,房产的无偿取得在一定程度上可以起到促进婚姻缔结或维系夫妻关系的作用。然而这一作用也不是万能的,当婚姻关系依然面临失败或解散,有关夫妻间无偿转让房产的约定是否依然需要继续履行,是司法界当中的一个具有争议的话题。如该约定属夫妻财产制约定之性质,则该约定不可单方撤销,但如该约定属夫妻间对房产的赠与,在房屋所有权未实际转移之前,房产出让一方可否享有同普通赠与合同一样的任意撤销权,在理论界和司法界出现了争议,即而引发出若干同案不同判之现象。为了明确司法审判依据,最高院曾出台相关法律予以明晰裁判规则,但并没有起到明显作用。笔者认为,问题的关键并不在于法律如何适用,而是在于不知适用哪条法律,以及法律适用是否合理得当的问题。因此,正确定位夫妻间无偿转让房产约定之性质,是解决这一争议的关键和基础。本文通过解释分析法、比较分析法等对夫妻财产制约定和夫妻间赠与进行了深入的分析和研究,目的在于理清二者各自的概念,找出二者的本质特征,再将其与现实案件中的法律特征进行比较,符合哪一法律行为之特征,则该法律行为即属哪一法律性质,以及通过研究和分析夫妻无偿转让房产之性质,探究目前的相关立法是否存在不合理或偏离价值取向的问题。本文一共分为三大部分:第一部分主要是介绍有关夫妻间无偿转让房产引发的争议和法律适用分歧、争议焦点及相关同案不同判之案例,通过简要分析制定出解决该问题的思路。第二部分主要是按照解决思路的步骤详细分析夫妻对于无偿转让房产约定所产生的影响,以及正确界定夫妻间无偿转让房产约定性质的方法和评判依据,并从中找出最根本的评判依据,阐明界定该约定性质的意义和作用。第三部分是将该评判依据应用到现实案例当中,即而起到理论联系实践的目的,同时对该评判依据或规则的合理性作出简要分析和评价。
[Abstract]:With the strengthening of our country's comprehensive strength and the increasing wealth of the residents, real estate has become an indispensable property for a family, especially for couples who are about to enter into a marriage or are in a marital crisis. To a certain extent, the free acquisition of real estate can promote marriage or maintain the relationship between husband and wife. However, this role is not a panacea, when marriage still faces failure or dissolution, whether the agreement on the free transfer of property between husband and wife still needs to be fulfilled, is a controversial topic in the judicial field. If the agreement is of the nature of the property system of the husband and wife, the agreement may not be unilaterally revoked, but if the agreement is a gift between the husband and the wife to the real estate, before the ownership of the building is actually transferred, Whether the real estate transferor can enjoy the same right of revocation as the ordinary gift contract is controversial in the theoretical and judicial circles, which leads to the phenomenon of several different judgments in the same case. In order to clarify the judicial basis, the Supreme Court issued relevant laws to clarify the rules of adjudication, but did not play a significant role. The author thinks that the key to the problem is not how to apply the law, but the question of which law is applicable and whether the application of the law is reasonable or not. Therefore, it is the key and foundation to settle the dispute by correctly defining the nature of the agreement on the free transfer of real estate between husband and wife. In this paper, the author makes a deep analysis and research on the agreement of husband and wife property system and the gift between husband and wife by means of interpretation analysis and comparative analysis. The purpose of this paper is to clarify their respective concepts and find out the essential characteristics of them. By comparing it with the legal characteristics of a real case, which legal act accords with the characteristics of the legal act, the legal act is of what legal nature, and by studying and analyzing the nature of the property transferred by the husband and wife free of charge, Explore whether the current relevant legislation is unreasonable or deviate from the value orientation. This paper is divided into three parts: the first part mainly introduces the disputes and differences in the application of the law caused by the non-reimbursable transfer of real estate between husband and wife, the focus of the dispute and the cases of different judgments in the related co-cases. Through the brief analysis, the thinking of solving this problem is worked out. The second part is to analyze in detail the influence of husband and wife on the agreement of free transfer of real estate according to the steps of solving the problem, as well as the method and judgment basis of defining the nature of the agreement of free transfer of real estate between husband and wife. And find out the most fundamental judgment basis, clarify the significance and role of defining the nature of the agreement. The third part is to apply the judgment basis to the practical cases, that is, to combine theory with practice, and to make a brief analysis and evaluation of the rationality of the judgment basis or rules at the same time.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923

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