夫妻间房产给予约定的性质与效力问题研究

Study on the Nature and Effectiveness of the Real Estate Giving Agreement between Hus-band and Wife

摘要: 夫妻约定一方将其个人所有的房产无偿转归另一方，这种约定原则上既不构成债法上的普通赠与或特殊赠与，也不是夫妻财产制契约，而是家庭法上的一种特殊赠与，即夫妻间基于婚姻之给予。对于此约定的效力，内部而言，仅具有债权效力，给予方在给付前不享有任意撤销权，在给付完成后，在特定情形下可援引法定撤销权或情事变更规则撤销其给予；就外部而言，夫妻间特殊赠与等同于债法上的普通赠与。

Abstract: The husband and wife agreed that one party will return his personal property to the other party free of charge. This agreement in principle does not constitute the ordinary gift or special gift in the debt law, nor is it a marital property contract, but a special gift in the family law, that is, the husband and wife based on marriage to give. As for the validity of the agreement, internally, it only has the validity of creditor’s rights. The granting party does not enjoy the right to arbitrarily cancel before the payment is made. After the payment is made, the granting party can invoke the legal right to cancel or the rule of changing circumstances to cancel the giving. Externally, special gifts between husband and wife are equivalent to ordinary gifts under the law of debt.