[Reprinted] If the property is given to the child, can the gift be recovered without going through the household?

My ex-wife and I were introduced to talk about marriage. After marriage, I feel that our personalities are very different and it is difficult to communicate. So he sued for divorce and the court mediated divorce. According to article 3 of the divorce mediation document issued by our divorce agreement, the house belongs to the husband and wife, and both parties voluntarily give it to their son after divorce. My son was 4 years old, and my children were raised by me. I always lived in the house and the woman moved out. However, the house has not been registered for change. Two years later, the woman sued for changing the child support relationship, and the court supported her claim through trial, and the child was raised by the woman. Now the woman wants me to move out of the house. Does it make sense for me to refuse to move out? Legal analysis The focus of the dispute in this case lies in the divorce agreement signed by the original defendant, which stipulates that the plaintiff's house will be given to his children. Is this behavior effective? There are three opinions in this court's trial: the first opinion is that the original defendant gave his house to his children, and he has disposed of the house by way of donation, losing the ownership of the house and, of course, the right to live, and the house should be transferred with the change of the child support relationship. The second opinion is that although the plaintiff and the defendant donated the house shared by the husband and wife to their children at the time of divorce, the children of both parties did not sign the agreement, so the intention expressed by both parties in the divorce agreement was only a unilateral legal act. A gift contract is not established if it does not constitute a gift contract in the sense of contract law. The house should be an inseparable property of husband and wife. The third view is that the behavior of the original defendant and the defendant giving their share of the house to their children in the divorce agreement belongs to the gift behavior. The gift contract was established, but it did not take effect. The original defendant can revoke the gift by exercising the right to terminate the gift contract at will to safeguard his ownership of the house. The author agrees with the above third opinion. The author believes that to clarify the legal relationship of this case, we need to pay attention to the following issues: first, as a person without civil capacity, can a 4-year-old child accept gifts independently; 2. Whether the gift contract in this case is valid; Third, whether the gift contract can be revoked. First, as a person without civil capacity, is it effective for minors to accept gifts independently? According to Article 6 of the People's Opinions: "If a person with no capacity for civil conduct or a person with limited capacity for civil conduct accepts a reward, gift or remuneration, others may not claim that the above acts are invalid on the grounds that the actor has no capacity for civil conduct or has limited capacity for civil conduct." According to the provisions of this article, although a 4-year-old child is a person without civil capacity, the remuneration, gift and remuneration he receives are beneficial and harmless, and he can accept the gift independently. Others may not claim that the gift is invalid on the grounds of his lack of civil capacity. 2. Is the gift contract in this case valid? First of all, the gift contract is a promise contract. According to Article 185 of the Contract Law: "A gift contract is a contract in which the donor gives his property to the donee free of charge and the donee expresses his acceptance of the gift". As can be seen from this clause, the gift contract is a promise contract. The so-called non-commitment contract refers to a contract in which one party's intention indicates that it will be legally effective once it is approved by the other party, that is, "a promise is as good as a thousand dollars", and the establishment of the contract does not require special legal procedures, such as registration. Therefore, as a promise contract, the gift contract is declared as soon as the donee accepts it. Secondly, the gift contract is optional. The so-called "optional contract" refers to a contract that is not required by law to have a specific form. An optional contract does not exclude the use of written or notarized forms, but the form of the contract does not affect the establishment of the contract. The gift contract can be in oral form, written form or notarized after the contract is concluded. No matter what form it takes, whether it is notarized or not, it will not affect the establishment of the gift contract. Because the gift contract is a non-essential contract, its form is relatively arbitrary, that is, it can be given orally or in writing. Accordingly, the second opinion is that the statement that the original defendant donated the house he shared to his children in the divorce agreement cannot be established because no children signed the agreement. The so-called signature can only prove the consistency of the parties' expression of will, because the gift contract is unnecessary and flexible in form, and the law does not require the donee to make a written expression of will; In addition, the donee's written statement on accepting the gift is too harsh, so if the plaintiff has no evidence to the contrary to prove that the donee does not accept the gift, it should be presumed that the donee has made a conscious statement on accepting the gift. According to the rules of burden of proof, the plaintiff should bear the burden of proof, and the gift contract should be established. However, the establishment of the contract does not mean the entry into force of the contract, and the entry into force of the gift contract needs to meet its entry into force requirements. According to Article 187 of the Contract Law, if the donated property needs to go through the registration formalities according to law, it shall go through the relevant formalities. In other words, the gift contract takes effect when the gift is delivered or the relevant formalities are handled. In this case, in order to make the plaintiff's house gift contract effective, it is necessary to go through the formalities of property right transfer. Therefore, although the gift contract in this case was established but did not take effect, the original defendant did not lose the ownership of the house. Third, can the gift contract be revoked? According to Article 186 of the Contract Law: "The donor may revoke the gift before the transfer of the right to the donated property. Article 60 of the Urban Real Estate Management Law stipulates that when transferring real estate, it shall apply to the real estate management department of the local government at or above the county level for registration of change. In addition, according to Article 9 of the Property Law, the establishment, alteration, transfer and extinction of the real right of immovable property shall take effect after being registered according to law; Without registration, it will not take effect, except as otherwise provided by law. Therefore, although your house has signed a gift contract, because it is not registered, the property right has not been transferred. The law stipulates that the arbitrary revocation of gift stems from the fact that gift is a free act. Even if the gift contract has been established, the donor can be allowed to cancel the gift for some reason, which is also a significant difference between the gift contract and other paid contracts. In particular, some gift contracts are concluded because of temporary emotional factors. If donors are absolutely not allowed to cancel, it is too harsh and unfair for donors. However, the law also stipulates several irrevocable gift contracts: (1) a gift contract in which the right to give property has been transferred; (2) A notarized gift contract; (3) Gift contracts with the nature of social welfare and moral obligation. The gift contract in this case does not belong to any of the above, and the original defendant can exercise the right to cancel the gift contract and safeguard his ownership of the house by canceling the gift.