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Subject: A Thesis on the Rules Established in China's Marriage Law with Respect to the Loss of Gift Foundation——Exemplified by Article 1,Clause 7 of the Third Legal Explanation on the Marriage Law
Author: Yang Jinling
Keyword: the System on obstacles of legally behavioral foundation, rules on the loss of foundation of behaviors
Newspapers published: Journal of China Women's University
Issue No. original: 2014(2)
The regulation in Article 1,Clause 7 of the Third Legal Explanation of the Marriage Law that any parental contribution to the purchase of immovable property shall be perceived as a parents' gift to offspring fails to reflect realistic features of marriage connections or to accord with China's customs relating to the passage or gifting of the parents' property to children,and overlooks the givers' expectation of their children's spouses to fulfill their duty of support,in addition to many other drawbacks of the regulation.In order to avoid a court's unjust attitude toward parental gifting,we should pursue a more fair and reasonable pattern of dynamic settlement.We can refer to the obstacles to legal behavior prescribed in Section 313 of the German Civil Code.Through borrowing the rules on loss of foundation of behavior from the system,it is plausible to establish Rules on the Loss of Foundation of Gifting Behaviors which,when the foundation of the parties to perform the gifting behaviors ceases to exist after the gifting,allow the givers to adjust or terminate the gifting behaviors in light of the principle of honesty and credit if the party who has performed the free gifting can no longer be reasonably expected to maintain the existing property relations.The establishment of such a regulation not only complies with the legislative aims of China's Marriage Law on the settlement of family relations,but also prevents the dilemma a court faces when it addresses the gifting of real estate which parties in an action have failed to arrange and on which the law fails to instruct.To protect the rights and interests of both sides of the marriage and their parents as the Legal Explanation expects,the regulation should be restricted not to apply the Rules on the Loss of Foundation of Gifting Behaviors to a party who has been married beyond a time limit and fulfilled duty due to raising children,care of parents or work assistance,and so on,except when the persons gifting commit significant faults to a break- up of the marriage.
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