离婚协议赠与子女财产条款的撤销研究

A Study of the Revocation of the Clause on the Gift of Property to Children in Divorce Agreements

离婚协议中的赠与子女财产条款,附随于双方解除婚姻关系这一法律行为,与身份关系交织密切。此类赠与和父母对子女的抚养义务紧密相关,蕴含了家庭伦理色彩和情感因素。故必须与发生在普通民事主体之间的财产赠与相区别,当事人对于离婚协议里此类条款不享有任意撤销权。由于现行法律未有具体的针对性规范否定赠与方的任意撤销权,可以援引诚实信用原则,发挥民法基本原则填补法律漏洞的作用。赠与方在离婚后、物权变更登记前请求撤销赠与子女财产的行为,违背了诚实信用原则。当事人不讲诚信,置子女利益不顾,若允许其行使任意撤销权,签订离婚协议原希冀带来的各方利益平衡将被打破,难以起到保护弱势一方的作用。

The clause on the gift of property to children in the divorce agreement is attached to the legal act of dissolution of marriage between the two parties,and is closely intertwined with the identity relationship.This kind of gift is closely related to the parents' obligation to raise their children.It contains family ethics and emotional factors.Therefore,it must be distinguished from gifts of property that occur between ordinary civil entities,and the parties do not have the right to arbitrarily revoke such clauses in the divorce agreement.Since the current law does not have specific norms to negate the granting party's right of arbitrary revocation,the principle of good faith can be applied at this time to play the role of the basic principles of civil law to fill the legal loopholes.The granting party's request to revoke the gift of children's property after the divorce and before the registration of the change of property rights violates the principle of good faith.If the parties concerned do not act in good faith and disregard the interests of the children,and if they are allowed to exercise the right of arbitrary revocation,the balance of interests that the divorce agreement was intended to bring will be broken and it will be difficult to protect the weaker party.