Civil and commercial perspective... During the existence of the relationship between husband and wife, the unilateral gift of the husband and wife's common property is invalid.
Published:
2023-11-23
During the existence of the relationship between husband and wife, if one party gives the couple's common property to the opposite sex outside marriage, is the gift invalid, completely invalid or partially invalid? Can the other party claim to return all the property due to invalidity?
Question raised
During the existence of the relationship between husband and wife, if one party gives the couple's common property to the opposite sex outside marriage, is the gift invalid, completely invalid or partially invalid? Can the other party claim to return all the property due to invalidity?
There are two views in judicial practice: first, it is partially invalid, because both men and women share the same share of the common property of husband and wife, and one party has the right to give the rights of his own party to others, who should be able to obtain half of the property rights. The second is that all are invalid. The reason is that the husband and wife have equal rights to deal with the common property. It requires that either party of the husband and wife shall not dispose of the common property of the husband and wife without authorization, and shall not infringe the other party's equal right to dispose of the common property of the husband and wife. The rights of one party should be completely invalid and all property should be returned.
Case Import
Li and Zhang are husband and wife. Li is not good at financial management and transfers all his income to Zhang. Later, Zhang met Liu, because Liu was beautiful, young and gentle, Zhang then maintained a long-term improper relationship with Liu. Without Li's knowledge, Zhang gave the couple's joint property to Liu X yuan through WeChat and bank transfer. In this case, without the consent of Li, Zhang's donation to Liu based on the improper relationship between men and women with Liu is invalid, and Liu should return the gift money and interest to Li. Therefore, Li mou filed a lawsuit with XX court, requesting to confirm that Liu mou and Zhang mou's donation is invalid according to law. Liu mou was ordered to immediately return the gift money x yuan to Li mou and pay interest. The litigation costs in this case shall be borne by Liu mou. XX court in accordance with the law after the hearing to support Li's claim.
legal analysis
1. To determine whether a party's gift is valid, it should be based on the relevant provisions of the the People's Republic of China Civil Code.
Article 8 of the "the People's Republic of China Civil Code" stipulates: "Civil subjects shall not violate the law or public order and good customs when engaging in civil activities." The second paragraph of Article 153 stipulates: "Civil legal acts that violate public order and good customs are invalid. These two provisions require civil subjects to carry out civil legal acts in accordance with the law, which is bound to be invalid if they violate public order and good customs. The second paragraph of Article 1043 of the "the People's Republic of China Civil Code" stipulates: "Husband and wife shall be loyal to each other, respect each other, and care for each other", requiring both spouses to fulfill the legal obligation of emotional loyalty to each other. The second paragraph of Article 1062 stipulates: "Husband and wife have equal rights to dispose of the joint property", requiring that either party of the husband and wife shall not dispose of the joint property of the husband and wife without authorization, and shall not infringe the other party's equal right to dispose of the joint property of the husband and wife.
2. In this case, Zhang donated the common property to Liu without the consent of his wife Li. His donation behavior violated the legal obligation of mutual loyalty between husband and wife, violated public order and good customs, and damaged the legality of his spouse in individual interests. Rights and interests, public interests are detrimental to social public order and good customs, so the gift is of course invalid from the beginning.
Article 157 of the the People's Republic of China Civil Code stipulates: "After a civil legal act is invalid and is revoked or determined not to be effective, the property acquired by the perpetrator as a result of the act shall be returned: if it cannot be returned or is not necessary, it shall be compensated at a discount. The party at fault shall compensate the other party for the losses suffered as a result; if all parties are at fault, they shall each bear the corresponding responsibility. Where the law provides otherwise, it shall be in accordance with its provisions." Therefore, Liu should return to Li the property acquired as a result of the invalid gift. At the same time, Liu also agreed to return the amount of its approval.
Views of the First Civil Trial Division of the Supreme People's Court
1. Both spouses have the right to the property of daily life.
During the existence of the marriage relationship, both husband and wife have equal rights to the common property. If the common property is disposed of due to the needs of daily life, either party has the right to decide. If the disposition is not due to daily life, it is necessary for the husband and wife to make a joint decision. After equal consultation between the husband and wife, a consensus has been reached.
2. The joint property of the husband and wife based on the law is common rather than shared, is an indivisible whole, and neither party has the right to dispose of it separately.
Article 299 of the the People's Republic of China Civil Code states: "The co-owners have joint ownership of the real or movable property in common." Combined with the general principle of common ownership, during the existence of the relationship between husband and wife, the common property should be regarded as an indivisible whole, and the husband and wife should have common ownership of all common property, and no individual share of the common property can be divided. The husband and wife have equal rights to deal with the common property, not mechanically according to the half share of the husband and wife. Only when the status of the husband and wife during their existence is broken can the common property be divided and their respective shares determined. Therefore, under the common relationship, the act of giving the common property to others without authorization by one of the spouses shall be completely invalid, not partially invalid.
Relevant Articles
1. Article 8 of the the People's Republic of China Civil Code stipulates that civil subjects shall not violate the law or public order and good customs when engaging in civil activities.
2. Article 153, paragraph 2, of the the People's Republic of China Civil Code stipulates that civil legal acts that violate public order and good customs are invalid.
3. The second paragraph of Article 1043 of the the People's Republic of China Civil Code stipulates that husband and wife shall be loyal to each other, respect each other and care for each other.
4. Article 1062, paragraph 2, of the the People's Republic of China Civil Code stipulates that husband and wife have equal rights to dispose of common property.
5. Article 157 of the the People's Republic of China Civil Code stipulates that after a civil legal act is invalid and has been revoked or determined to be ineffective, the property acquired by the perpetrator as a result of the act shall be returned: if it cannot be returned or is not necessary, compensation shall be paid at a discount. The party at fault shall compensate the other party for the losses suffered as a result; if all parties are at fault, they shall each bear the corresponding responsibility. Where the law provides otherwise, such provisions shall prevail.
6. Article 310 of the the People's Republic of China Civil Code stipulates that the disposal of common real or movable property and the major repair, change of nature or use of common real or movable property shall be subject to the consent of the co-owners or all the co-owners who account for more than 2/3 of the shares, unless otherwise agreed between the co-owners.
Key words:
Related News
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
