离婚协议中赠与方不得行使任意撤销权的探讨——兼评《婚姻法司法解释(三)》第6条

Discuss on the Grant Party Having no Cancelation Right in Divorce Agreement——Assessment on the 6th Article of the Judicial Interpretation for Marriage Law Explanation(III)

2011年8月《婚姻法司法解释(三)》颁行以来,离婚协议履行过程中出现约定赠与方任意行使撤销权的现象屡见不鲜,导致受赠方权利无法实现,背离了当初选择协议离婚的初衷。虽然《合同法》已经明确规定涉及婚姻等有关身份关系的协议不适用于该法,且这种认知在我国被普遍接受。但是法律都是相通的,不同的部门法之间有个性也会有共性,既不能抹杀个性,也不能对共性视而不见。为了保障离婚协议约定内容的具体实现,文章首先厘清了《合同法》与《婚姻法》的关系,进而论证在离婚协议中设定违约责任条款是可行且必要的,从而得出赠与方不得行使任意撤销权之结论。

The grant party perform his cancelation right arbitrarily during the fulfilling of the divorce agree- ment after the ＂Marriage Law explanation （III）＂ came into effect in August 2011 is not scare, which indicate that the grantee＇s fight unrealized so that make the grantee deviate the original intension of choosing divorce agreement. Although ＂Contract law＂ formulates contract referred to personal status agreement is not subject to it and such cognition has been universally accepted in China. However statues share in common sense. Differ- ent divisional laws have general character though they differs. We can not blur out the unique but at the same time we cannot ignore the general characters either. In order to make divorce agreement come true, first his paper clear up the relation between ＂Contact law＂ and ＂Marriage law＂, then argue that establish the liability for breach of contract be feasible and necessary in divorce agreement, finally we draw the conclusion that the grant party could not perform cancelation right arbitrarily in divorce agreement.