1. Background of the problem
Real estate expenditure can be said to be the largest expenditure in the current marriage and family, and at the same time, because of various factors such as purchase time, capital contribution**, repayment method, registration situation, family environment and other factors, the issue of ownership and division of the house has become particularly complicated, which can be said to be a difficult point in judicial practice. This article elaborates on the right of revocation and its exercise after the divorce of a husband and wife after giving a house to their children through a case study.
2. Case index
Case 1: Yu XX v. Gao XX after divorce property dispute
Brief facts of the case:
Yu Moumou and Gao Moumou registered their marriage in 2001, and gave birth to a son Gao Moumou in 2003 after marriage. Due to emotional discord, the two parties mediated a divorce in the court in 2009, and the "Divorce Agreement" stipulated that a house in a community in Beijing under the names of both parties would be owned by Gao, the son of both parties, Gao, after the loan was paid off.
In 2013, Yu Moumou "repented" on the terms of the above-mentioned agreement and sued the People's Court of Dongcheng District, Beijing, claiming that the No. 59 housing loan had not been paid off, and the property rights of the house had not been changed to Gao's name, that is, it had not been actually donated to Gao, and it was still in the state of common property between Yu and Gao, so he did not plan to donate the part of the house to Gao again, and advocated that the previous gift should be revoked and the No. 59 house should be divided by the court in accordance with the law.
Gao Moumou replied: At the time of the divorce, the two parties had already donated the house agreement to Gao, and it was precisely because Yu Moumou agreed to donate the house to Gao that I agreed to other clauses in the divorce agreement that increased my obligations, such as repaying the joint debts of the husband and wife separately after the divorce450,000 yuan. I believe that the divorce has caused great harm to the children, and for the sake of the minor, the lawsuit of Yu XX should not be supported.
Referee's opinion:
First-instance judgment: The effective judgment of the People's Court of a district in Beijing held that both parties knew that the house was the joint property of the husband and wife during the existence of the marital relationship, and that Yu XX and Gao had already reached an agreement on the disposition of the disputed house, and the agreement was reached by the two parties at the time of divorce, that is, the agreement between the parties to donate the house to their son was based on the dissolution of the relationship between the husband and wife of the parties. After Yu XX and Gao XX divorced, Yu XX did not agree to perform the agreement on the handling of the disputed house and requested the division of the disputed house, and the legal basis for his litigation claim was insufficient and it was also contrary to good faith. Therefore, the court did not support XX's litigation claim; Therefore, on April 24, 2013, a civil judgment was rendered: rejecting Yu XX's litigation claim.
Second-instance judgment: After the first-instance judgment was announced, Yu XX appealed to the Beijing No. 2 Intermediate People's Court, and the Beijing No. 2 Intermediate People's Court rendered a judgment on July 11, 2013: rejecting the appeal and upholding the original judgment.
Case 2: Retrial of the dispute over the revocation of the gift contract between Feng X 1 and Jia X and others
Brief facts of the case:
Wang and Feng are husband and wife, and the two have a daughter, Feng 1Jia is the mother of Feng 3. On December 4, 2016, Feng X 3, Wang X and Feng X 1 signed the "Real Estate Gift Statement". The content of the "Real Estate Gift Statement" shows that the donor (Feng 3 and Wang) voluntarily donated the real estate located in a certain district of a city to the donee (Feng 1) free of charge. The donor (Feng 3, Wang) only donated the property to his daughter Feng 1, and other Feng 1 related relatives (such as spouses) are not entitled to any rights to the property. After the transfer, the property does not belong to the joint property of Feng X 1 during the marriage, but only belongs to Feng X 1 alone. On June 9, 2018, Feng Mou3 died. Jia X claimed that the house involved in the case was a relocation house, and Feng X 3, Jia X , Feng X 1, and Wang X each received an area of 15 square meters, which was registered under the name of Feng X 3, and Feng X 3 donated the house to Feng X 1 without Jia's permission, and Jia X was the legal heir of Feng X 3 and had the right to revoke Feng X 3's gift to the house involved in the case.
Referee's opinion:
The court of first instance held that the "Statement of Real Estate Gift" involved in the case was signed by Feng X 3 with Wang X and Feng X 1 before his death, and the judgment had confirmed that the "Real Estate Gift Statement" complied with the relevant laws and regulations of China and was valid. Mr. Jia is not the signatory of the "Statement of Real Estate Gift", and the civil judgment involved in the case is now an effective civil judgment and it has been determined that the "Statement of Real Estate Gift" is valid, so Jia's litigation claims and requests that the civil judgment should be revoked in this case do not comply with the laws of our country and are not supported by this court. It should be noted that according to the laws of our country, a valid contract can be revoked in accordance with the law. Jia, as the mother of Feng X 3, is the first legal heir of Feng X 3's estate, and in the case that the transfer of the house pointed out in the aforesaid "Real Estate Gift Statement" has not been completed, he has the right to request the revocation of the gift of the house in accordance with the laws of China. Therefore, Jia should find other ways to remedy his civil rights in accordance with the law.
The court of second instance held that: on December 4, 2016, the "Statement of Real Estate Gift" signed by Feng X 3, Wang X and Feng X 1 was later confirmed by the effective judgment that the "Real Estate Gift Statement" was valid, but the house involved in the "Real Estate Gift Statement" was not transferred to the name of Feng X 1. On June 9, 2018, Feng X 3 died, and his legal heirs were his mother Jia, his wife Wang, and his daughter Feng X 1. Now Feng X 1 and Wang X appealed and advocated that the house involved in the case be transferred to Feng X 1 in accordance with the "Real Estate Gift Statement", in which Jia argued that the house had not gone through the transfer procedures and requested to revoke the gift.
As the legal heir of Feng X 3, Jia has the right to request the revocation of the Real Estate Gift Statement and refuse to transfer the house to Feng X 1 before the transfer of ownership of the house involved in the "Real Estate Gift Statement" to Feng X 1, that is, before the transfer of the right to donate the property. Feng X 1 appealed, claiming that Feng X 3 and Wang X had delivered the real estate certificate to him at the time of his marriage and had actually lived in the house for many years, so the transfer of the donated property had been completed. Although Feng Mou1 submitted corresponding evidence on his claim, according to the laws of China, the change of ownership of immovable property is subject to registration. Therefore, after the delivery of the house, before the change of right registration, it was still before the transfer of the donated property, so the court of second instance did not accept Feng X 1's claim. In addition, Feng X 1 and Wang X appealed and asserted that Feng X 1 should bear the obligation of birth, support, death and burial to Feng X 3 and Wang X, so the "Real Estate Gift Statement" has the nature of moral obligation and is an irrevocable gift. Therefore, the court of second instance rejected the appeal and upheld the original judgment.
The retrial court held that although it is common for parents to voluntarily prepare a matrimonial house for their children or give real estate as a dowry, which reflects the parents' love for their children, it is difficult to describe their obligations. The relevant litigation claims of Feng X 1 and Wang X cannot be sustained, and this court does not support them. Therefore, the retrial court upheld the judgment of the court of second instance.
3. Case Analysis:
In the two cases selected in this article, the focus of the dispute between the parties is essentially whether one party has the right to revoke the change of registration of the donated real estate before the divorce agreement stipulates that the property jointly owned by the husband and wife will be donated to the minor children. In the divorce agreement, the agreement between the parties to donate joint property to minor children and the dissolution of marriage, child support, division of joint property, settlement of joint debts, and compensation for divorce damages are mutually premised and mutually concluded, constituting a whole and a package solution. If one party is allowed to renege, then the integrity of the divorce agreement between the man and the woman will be destroyed. In the case that the marriage relationship has been dissolved and irreversible, if the parties are allowed to repent, it will encourage the act of divorcing first and then maliciously taking possession of the property, which is contrary to good faith and is not conducive to protecting the rights and interests of minor children. Therefore, after divorce, when one party wants to unilaterally revoke the gift in accordance with Article 186 of the Contract Law (now Article 658 of the Civil Code), it should also obtain the consent of both parties, and has no right to unilaterally revoke the gift without the consent of the other party who is a co-owner.
4. Legal basis
1] Article 658 of the Civil Code of the People's Republic of China [The Donor's Right of Arbitrary Revocation and Its Limitations] The donor may revoke the gift before the transfer of the right to the donated property.
The provisions of the preceding paragraph do not apply to notarized gift contracts or gift contracts that have the nature of public interest or moral obligations such as disaster relief, poverty alleviation, or assistance to the disabled, which must not be revoked in accordance with law.
2] Article 661 of the Civil Code states that a gift may be conditional, and if the gift is accompanied by an obligation, the donee shall perform the obligation in accordance with the agreement.
3] Article 663 of the Civil Code of the People's Republic of China, if the donee has any of the following circumstances, the donor may revoke the gift:
1) Seriously infringing upon the lawful rights and interests of the donor or the donor's close relatives.
2) There is an obligation to support the donor and does not perform.
3) Failure to perform the obligations agreed upon in the gift contract.
4] Article 32 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Inheritance Section of the Civil Code.
If, before marriage or during the existence of the marital relationship, the parties agree to donate or jointly share the real estate owned by one party to the other party, and the donor party revokes the gift before the registration of the change of the donated real estate, and the other party requests an order to continue performance, the people's court may handle it in accordance with the provisions of Article 658 of the Civil Code.
4] Article 70: Where the husband and wife repent on the issue of property division after agreeing to divorce and request the revocation of the property division agreement, the people's court shall accept it.
Where, after trial, the people's court does not discover that there was fraud or coercion at the time of entering into the property division agreement, it shall reject the parties' lawsuit in accordance with law.
Fifth, the problem is extended
1) If both parties agree to divorce and agree to donate the property to their children, but one of the parties does not cooperate with the transfer procedures after the divorce and claims to revoke (i.e., repentance), what circumstances can be supported?
1. Based on the relativity of contract, if both the original husband and wife agree, they can be jointly revoked before the change of registration;
2. If there is fraud, coercion, etc., when entering into a property division agreement, the court may support the application for revocation.
2) When the above-mentioned claim for revocation of gift occurs, who can file a lawsuit as the subject of litigation?
1. Cases in which the counterparty of the Divorce Agreement is recognized as the subject of litigation in the judiciary:
In the Civil Ruling of the Supreme People's Court, the Supreme People's Court held that the husband and wife only expressed their intention to donate the real estate in the Divorce Agreement, and although the agreement set up benefits for the children, whether the benefits can be realized depends on whether the husband and wife actually fulfill the obligation to transfer the property rights of the donated real estate. After the Divorce Agreement was made, the husband and wife did not transfer the donated property to the name of the child, but handled it in the name of one of the husband and wife. In the case of gifted property, the child does not have ownership of the property until the title is in the child's name. Even if one of the husband and wife has delivered the house title certificate to the donee child, because the divorce agreement is an arrangement made by the husband and wife on how to dispose of the divorced property, and is not a written gift contract with the donee child, the gift cannot be determined to be valid according to the Opinions of the Supreme People's Court on Several Issues Concerning the Implementation of the General Principles of the Civil Law of the People's Republic of China (for Trial Implementation).
In the Hu Min Shen Civil Ruling, the Shanghai Municipal High People's Court held that:
Paragraph 1 of Article 522 of the Civil Code of the People's Republic of China stipulates that if the parties agree that the debtor shall perform the debt to a third party, and the debtor fails to perform the debt to the third party or the performance of the debt does not comply with the requirements, it shall bear the liability for breach of contract to the creditor. The court of second instance held that the children were not qualified plaintiffs in this case, and it was not improper for the courts of first and second instance to dismiss the lawsuit. Shen could not provide sufficient basis for the reasons for his application for retrial, and it was not sufficient to initiate a retrial. In summary, Shen's application for retrial did not meet the requirements of Article 200, Item 6 of the Civil Procedure Law of the People's Republic of China.
2. Cases in judicial practice that recognize the donee as the subject of litigation:
In the civil judgment of a certain civil court in Beijing, the Beijing No. 1 Intermediate People's Court held that Article 185 of the Contract Law of the People's Republic of China stipulates that a gift contract is a contract in which the donor gives his property to the donee free of charge, and the donee expresses his acceptance of the gift. According to this provision, a gift contract has the following legal characteristics: a gift contract is a legal act of both parties, and it can only be established if both parties express the same intention; A gift contract is a contract for the transfer of property rights, and the donor transfers the property rights to the donee; A gift contract is a contract of promise, and a contract can be established when the parties express their intentions in agreement.
The "Divorce Agreement" signed by Liu X 1 and Mao X 1 clearly stipulates that the house involved in the case is owned by Liu X 2 and needs to go through the transfer procedures, Liu X 1 and Mao X 1 both have the obligation to handle the transfer. According to the agreement, Liu X 1 and Mao X 1 had already expressed their intention to donate the house involved in the case to Liu X 2. After the agreement was signed, Liu XX2 had asked Liu XX1 to perform the obligation to handle the transfer, and he had indicated that he had accepted the gift by his actions. In the second instance, Liu X 1 admitted that he had stated that he had transferred the house involved in the case to Liu X 2 at a later date, and Mao X 1 now also requires Liu X 1 to perform the obligation of the relevant transfer procedures. Combined with the true intentions of the parties, a gift contract relationship was established between Liu X 1 and Mao X 1 and Liu X 2. The court of first instance made a correct disposition, and this court affirms it.
In the civil judgment of a civil finale in Zhejiang, the Intermediate People's Court of Hangzhou Municipality, Zhejiang Province, held that on May 7, 2014, the "Divorce Agreement" signed by Weng and Yao Ce was an agreement reached by the two parties after comprehensive consideration of marriage issues, child support issues, property division issues, etc., and was not a simple gift contract. It is contrary to the effective judgment and is not supported by this court. With regard to the appellant's argument that the plaintiff in this case is not qualified, after review, the parties agreed in the Divorce Agreement that the shop in dispute in this case is owned by Yao, and now Yao (a child) accepts it, but Yao Ce does not cooperate with the transfer, and Yao, as the right holder, initiates a lawsuit in this case, which meets the relevant provisions of civil litigation. Therefore, this court also rejected this ground of appeal.
6. Lawyer Yao Zhidou of Beijing Jingshi Law Firm believes
If the parents agree in the divorce agreement to donate the house to their children, it is different from the general gift contract, and if the husband and wife agree in the divorce agreement that the real estate belongs to the children, the agreement is still essentially part of the property division agreement with personal attributes. It is precisely for this reason that the gift clause in the divorce agreement cannot be separated and treated in isolation, nor can the provisions of the gift contract be mechanically applied to allow the parties to exercise the right of revocation at will.
In addition, if the marriage is dissolved and then the right to revoke the gift agreement in the divorce agreement is tantamount to the destruction of the principle of good faith and public order and good customs, and then repenting after achieving the purpose of divorce through the agreed gift, and realizing the re-possession of the house, it is not only a destruction of the conditions for the divorce agreement, but also an irresponsibility for the children in the marriage relationship, so the parties agree to divorce and agree to donate the property to the children, but after the divorce, one of the parties does not cooperate with the transfer procedures and claims to revoke (i.e., repentance). It should not be supported.