Ningbo divorce agreement to give children's personal real estate, whether to allow arbitrary revocation.
This article is a case of retrial review (Henan Provincial Higher People's Court [2021] Yu Min Shen No. 7676) triggered by a divorce agreement to give children real estate and one party to go back on his word and sell it without authorization after divorce. The core issue: Can the property under one party's name be given to the children as agreed in the divorce agreement? The main points and conclusions of the decision are as follows.
1. referee gist
the behavior of both husband and wife to dispose of property to their children based on the cause of divorce can be regarded as a kind of gift behavior with agreed divorce conditions. Under the premise that the marriage relationship between the two parties has been dissolved, based on the principle of good faith, it is not allowed to arbitrarily revoke the gift to prevent malicious use of the gift to achieve the purpose of both divorce and possession of property, which not only causes economic losses and new mental damage to the children or original spouse, it also brings the negative impact of dishonesty to the society instead of benefiting. This case is not a simple gift act, but a gift act involved in the divorce agreement. According to the principle that the special law is superior to the general law, this case applies the marriage law and its The relevant provisions of the judicial interpretation are not improper to apply the law.
2. Judgment Documents
civil Ruling of Henan Higher People's Court
(2021) yu min shen no. 7676
retrial Applicant (Defendant of First Instance and Appellant of Second Instance): Liu Moumou, male, Han, born on March 29, 1981, lives in Qingshan District, Wuhan City, Hubei Province.
Agent ad litem: Wu Haoqiang, lawyer of Henan Regal Law Firm.
Authorized agent ad litem: Laiyusuan, lawyer of Henan Insight Law Firm.
Respondent (plaintiff of first instance and appellant of second instance): Liu mou, female, Han, born on December 2, 2016, lives in hongqi district, Xinxiang city, Henan province.
Legal representative: Zhang (mother of Liu), female, Han, born on October 25, 1989, lives in Hongqi District, Xinxiang City, Henan Province.
Authorized agent ad litem: Liu Yan, lawyer of Beijing Weiheng (Zhengzhou) Law Firm.
Agent ad litem: Zhang Long, lawyer of Beijing Weiheng (Zhengzhou) Law Firm.
The retrial applicant Liu Moumou refused to accept the civil judgment of Henan Xinxiang Intermediate People's Court (2021) Yu 07 Min Zhong No. 1337 due to a dispute over the gift contract with the respondent Liu Moumou, and applied to the court for retrial. The Court formed a collegial panel in accordance with the law to conduct a review, which has now been concluded.
Liu Moumou applied for a retrial, saying that the original judgment of the 1. ordered Liu Moumou to return the sale price of the property (hereinafter referred to as the property A) located in Xihu (with a construction area of 205.43 square meters) in Xinxiang Development Zone to Liu Mou. The basic facts identified lack evidence. 1. The existing new evidence can prove that the actual owner of the real estate A involved in the case is Ge Moumou, an outsider, not Liu Moumou. The real estate certificate is registered in Liu Moumou's name and is held by Liu Moumou on behalf of his mother. 2. "Divorce Agreement" The property donated by Liu Moumou to Liu Mou is not the above-mentioned property. The Divorce Agreement states that Liu Moumou gave Liu Mou "a house with an area of about 255.5 square meters located in Room 202, Unit F2, Zhengmou Garden, No. 20, Xinxiang Development Zone" (hereinafter referred to as real estate B). The real estate A and real estate B sold by Liu Moumou's mother on his behalf are not the same real estate. The application of law in the original judgment of the 2. is wrong. The cause of the case is a dispute over the gift contract, so the trial of this case should give priority to the legal provisions on the gift, rather than the relevant provisions of the Marriage Law and its judicial interpretation. 1. Liu Moumou and Liu Mou's legal representative Zhang Mou signed a divorce agreement. Although it is agreed to donate the property B to Liu Mou, the property is not Liu Mou's property and Liu Mou cannot be registered in Liu Mou's name. Although the property A is registered in Liu Mou's name, Liu Mou is not the actual owner of the property. The property is actually purchased by Liu Mou's mother and Liu Mou is only the nominal owner of the property, no right to dispose of the property. 2. The gift relationship in this case is not established. According to the provisions of Article 128 of the Opinions of the Supreme People's Court on Several Issues Concerning the Implementation of the General Principles of the People's Republic of China Civil Law (for Trial Implementation), the establishment of the donation relationship shall be subject to delivery, and the donation of houses shall be subject to the transfer registration. As mentioned above, Liu Moumou is not the actual owner of either real estate A or real estate B, and Liu Moumou has no right to dispose of the above real estate, because the above real estate has not been transferred to Liu Mou, therefore, the gift is not established. If the 3. determines that Liu has the right to sue, the agreement on the disposal of real estate in the divorce agreement belongs to the gift of real estate under Liu's name to Liu, and Liu can revoke the gift before the transfer of rights. To sum up, the basic facts identified in the original judgment lack evidence, and the application of the law is seriously wrong. Liu Moumou applied for a retrial in accordance with the provisions of Article 200, Items 1, 2, and 6 of the the People's Republic of China Civil Procedure Law.
Liu submitted an opinion that 1. Liu did not provide sufficient evidence to prove that the real estate involved in the case was the property of Ge, an outsider. 1. The property rights of the property involved in the case are registered in the name of Liu, the owner of the property certificate registration of the property involved in the case is Liu, and Liu is the owner of the property involved in the case. 2. The real estate involved in the case was not held by Liu Moumou on behalf of his mother Ge Moumou. Liu Moumou, his mother Ge Moumou and others live in Xinxiang. There is no purchase restriction or loan restriction policy. The property does not belong to policy houses such as internal employees or members of collective organizations or other properties enjoying specific preferential treatment. Ge Moumou does not need to hide the real property when purchasing the property involved in the case. Therefore, Ge Moumou does not have objective reasons and subjective needs to let Liu Moumou hold the property involved in the case on his behalf. And Ge Moumou himself has many properties in Xinxiang City. Even if the real estate involved in the case is contributed by GE, according to the first paragraph of Article 22 of the (II) of the Supreme people's Court on the interpretation of several issues concerning the Application of the the People's Republic of China Marriage Law, the real estate involved in the case can only be identified as the personal property before marriage given by GE to Liu, not GE's property. 3. The property sold by Liu is the same property as the property agreed upon in the divorce agreement. Although the house agreed by Liu Moumou and Zhang in the divorce agreement is located in Room 202, Unit F2, Zhengmou Garden, No. 20, Xinxiang Development Zone, in fact Liu Moumou and Zhang have no real estate in No. 20, Xinxiang Development Zone, but Liu Moumou owns a real estate in Xinxiang Development Zone, which is 3-4 west households in a unit east of Building F2-1, so the real estate sold by Liu Moumou is consistent with the real estate agreed in the divorce agreement. And when Liu Moumou signed the divorce agreement on September 18, 2018, he deliberately miswrote the real estate information involved in the case, so as to transfer the property as soon as possible after defrauding Zhang to go through the divorce registration procedures with him, and shortly after the divorce In November, Liu Moumou sold the property without authorization knowing that it should be delivered to Liu in accordance with the divorce agreement, its violation of the agreement, the transfer of property subjective malice is very obvious. 4. The real estate involved in the case is the property of Liu. As a person with full civil capacity, the act of donating the real estate involved to Liu when signing the divorce agreement is legal and effective. 2. the original application of the relevant provisions of the Marriage Law and its judicial interpretation is not improper. 1. The agreement on house gift in the divorce agreement does not constitute a gift in the general sense of the contract law. It is a purposeful gift based on the cause of divorce. It is based on the dissolution of the relationship between men and women. It is a gift with agreed divorce conditions, not a free gift in the sense of contract law. The property gift clause of the divorce agreement is inseparable from the dissolution of the marriage relationship, and it is a gift conditional on "divorce. The property gift clause of the divorce agreement seems to be a pure property disposition, which essentially involves personal relations such as the existence of marriage and the upbringing of children. Behind such property arrangements is often a comprehensive consideration of various complex emotional, ethical and economic motives, including a kind of living security for minor children after divorce, which is different from the general sense of giving children property (houses, etc.) and cannot be arbitrarily revoked. As an important part of the divorce agreement, the provision of giving children property is interdependent and inseparable with other contents of the divorce agreement. It has the characteristics of "integrity" and cannot be revoked separately. 2. This case is based on the divorce agreement on the property gift contract dispute, the contract law and other provisions on the general sense of the gift contract shall not be applied to the case to judge, the original trial application of the marriage law and its judicial interpretation of the provisions of the judgment is not improper. To sum up, the original judgment was correct and Liu Moumou's retrial application was requested to be rejected according to law.
After examination, the court held that according to the facts found in the original trial, Zhang and Liu registered their marriage in the Civil Affairs Bureau of Hongqi District, Xinxiang City on December 16, 2015. Later, due to emotional discord, the two sides agreed to divorce. On September 18, 2018, the two parties signed a divorce agreement and registered the divorce. The divorce agreement stipulates that the 255.5-square-meter house located in Room 202, Unit F2, Zhengmou Garden, No. 20, Xinxiang Development Zone, belongs to her daughter Liu. The house will be transferred to the woman within 6 months after the divorce. The woman shall not sell the house until the daughter is 18 years old. On November 25, 2018, Liu Moumou, Li Ying and Wei Jingwang signed a second-hand housing sales contract in Xinxiang City Pangda Real Estate Brokerage Service Co., Ltd. (hereinafter referred to as "Pangda Company"), agreeing to sell the house involved in the case of Bozhuzheng Garden under Liu Moumou's personal name to Li Ying and Wei Jingwang with a deposit of 50000 yuan and a total house price of 1.4 million yuan. After the completion of the payment and transfer procedures. Bozhu is a garden located in Xinxiang City Development Zone. No. 20 neighborhood of Xinxiang Development Zone is the location of Tianxiacheng Community. Liu Moumou has no real estate in this community. Regarding the ownership of the real estate involved in the case, the real estate involved in the case was registered in the name of Liu Moumou, and the real estate involved in the case was obtained through registration. Therefore, the real estate involved in the case belonged to Liu Moumou. Liu Moumou claimed that the real estate involved in the case was not owned by his mother and was not supported. Regarding whether the real estate mentioned in the divorce agreement is the same real estate as the real estate under Liu Moumou's name, although the house agreed in the divorce agreement is located in Room 202, Unit F2, Zhengmou Garden, No. 20, Xinxiang Development Zone, and the real estate under Liu Moumou's name shows that it is located in the development zone, which is literally inconsistent, but Liu Moumou and Zhang have only one real estate in Zhengmou Garden, the inaccuracy of the location statement in the divorce agreement does not affect the determination that the actual division between the two parties is a garden property under the name of Liu Moumou. Regarding the issue of whether the applicable law in this case is correct, the behavior of both husband and wife to dispose of property to their children based on the cause of divorce can be regarded as a kind of gift behavior with agreed divorce conditions. Under the premise that the marriage relationship between the two parties has been dissolved, based on the principle of good faith, it is not allowed to arbitrarily revoke the gift to prevent malicious use of the revocation of the gift to achieve the purpose of both divorce and possession of property, it not only caused economic losses and new mental injuries to the children or the original spouse, but also brought negative effects of dishonesty to the society. This case is not a simple gift behavior, but a gift behavior involved in the divorce agreement. The principle that the law is superior to the general law, so the relevant provisions of the Marriage Law and its judicial interpretation are applicable in this case, and the applicable law is not improper.
To sum up, Liu Moumou's application for retrial cannot be established and will not be supported. In accordance with the first paragraph of Article 204 of the the People's Republic of China Civil Procedure Law and the second paragraph of Article 395 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law, the ruling is as follows:
liu Moumou's application for retrial was rejected.
Presiding Judge Qin Shifei Judge Zhang Wei Judge Zhao Yanbin November 29, 2002 Assistant Judge Li Tengfei Clerk Li Xianghua