夫妻间给予不动产的约定之性质及效力分析

Analysis of the Nature and Effectiveness of the Agreement between Husband and Wife to Convey Real Estate

夫妻间给予不动产约定是附随身份的财产关系,财产法的适用应具有谦抑性,应首先适用婚姻家庭法的规定。其次,夫妻约定财产制中的某种情形与赠与关系类似,但一个为共同行为,一个为双方行为,两者的合同目的、针对标的都不相同,因此不应一味地等同。根据不同情形,对约定的性质有三种定性,分别为隶属于夫妻约定财产制、家庭法上的特殊赠与与普通赠与。在效力方面,区分内外效力。否认任意撤销权的适用,确立法定撤销权的适用与情势变更规则的目的性扩张。未经登记,不得对抗第三人。逃避债务,一方为赠与时,第三人具有撤销权。

The real estate agreement between husband and wife is a property relationship with identity. The application of property law should be modest, and the provisions of marriage and family law should be applied first. Secondly, a certain situation in the marital agreed property system is similar to the gift contract, but one is a common behavior, one is the behavior of both parties, the purpose of the contract, for the object are not the same, so it should not be blindly equal. According to different circumstances, there are three kinds of qualitative nature of the agreement, which are conjugal agreement property system, special gift relationship in family law and ordinary gift relationship. In terms of effectiveness, distinguish between internal and external effectiveness. The application of arbitrary revocation right is denied, and the application of statutory revocation right and the purposive expansion of the rule of circumstance change are established. No one may confront a third party without registration. If the agreement was entered into for the purpose of evading the debt, the creditor has the right to cancel.