preface:
The 28-year life misalignment case continues to attract attention, and continues to derive the case within the case, surrounding the 28-year life dislocation, two families, a hospital, and multiple parties involved.
Because of the bizarre circumstances of the case, even the author of the novel will not write about this, and the legislators did not foresee such a thing when legislating, so that there are more or less gaps in the law, so that the series of cases is sometimes not very clear in the law and is prone to controversy. In this series of cases, the intersection between love and reason, love and law, tests the wisdom of lawyers and adjudicators on both sides.
It is precisely because the plot of this case is more complex and bizarre, and even many legal "gaps" have appeared, and in these cases, some of them are destined to be written into law textbooks in the near future, or become classic teaching cases in law schools. Therefore, it is of great practical significance to discuss and study these cases, whether in academic and judicial practice, or in the popularization of law to the public.
This article sorts out the difficult legal issues involved in the series of cases, in order to cause unnecessary controversy, at the beginning of the chapter, the author also specifically states that this article is not intended to be involved in the war of words between all parties, does not preset any position, completely remains neutral, according to the information publicly disclosed on the Internet, from a purely professional academic point of view, only as a personal academic point of view, does not constitute any legal opinion, and does not represent the result of the adjudication.
Let's take a look at which of the cases in this series are likely to be written in law school textbooks:
<h1 class="pgc-h-arrow-right" data-track="9" > 28 years of life swap series legal combing, Xu Min real estate lawsuit may face what dilemmas? </h1>
In the version circulating on the Internet, some people say that the house was purchased by Xu Mama, and the loan and decoration were also paid by Xu Ma, only because yao Ce was mistakenly believed to be his own son, it was directly registered in Yao Ce's name, and now since it is found that Yao Ce is not his own son, the fact that the original foundation of the purchase of the house registered under Yao Ce's name has changed, and it should be possible to recover the house. Therefore, many netizens believe from a simple emotional point of view that Xu Min's lawsuit for the return of Jiujiang real estate should be successful.
Xu Min has hired an excellent team of lawyers, the lawyer team has more first-hand information, has more understanding of the facts of the case and the application of the law, and believes that her legal team will definitely complete the task of representing the case well.
This article only from the perspective of popularizing the law and discussing, assuming that the above main facts are true, that is, assuming that the property involved in the case is indeed the foundation of the fact that Xu Min and his wife have funded and registered under the name of Yao Ce, to discuss what legal dilemmas may exist in the current Xu Min and his wife suing for the return of the property? Friends who support Xu Min's litigation request out of simple feelings can also participate in the discussion from different angles, hoping to provide a valuable reference for the smooth and satisfactory resolution of the case.
<h1 class="pgc-h-arrow-right" data-track="70" > From the perspective of property law, the property involved in the case belongs to Yao Ce's personal or joint property of the husband and wife, and after his death, the part that belongs to his personal ownership before his death belongs to his inheritance</h1>
If the real estate property right certificate of the real estate is registered in the name of Yao Ce, whether it is according to the previous Property Law or the current Civil Code, the ownership of the property should belong to Yao Ce according to law.
Of course, if Yao Ce and his parents have an agreement on the ownership of the house, then the parents can enjoy the co-ownership rights according to the agreement, and even if the agreement stipulates that Yao Ce only holds the property on behalf of the parents, then Xu Min and his wife can even enjoy all the property rights of the house. However, the premise is that the agreement is valid, and, according to the principle of who claims and who presents evidence in civil litigation, Xu Min's party has the burden of proof for the facts it claims, and needs to bear the adverse consequences of not being able to adduce evidence. So far, from public information, it is not clear that there is such an oral or written agreement.
On the other hand, according to the law of our country, the "parents" who pay for the purchase of a house for their children and register it in the name of their own child belong to the personal property of the child, but the law also stipulates that both men and women can make agreements on property before or after marriage. Therefore, if Xu Min and his wife do not have a special agreement with Miao Ce, the property should belong to Miao Ce's personal property, but Yao Ce can freely dispose of the property under his own name before his death, including the agreement to belong all or part of the property to his wife, and can also make a will to designate an heir.
<h1 class="pgc-h-arrow-right" data-track="71" > Second, Xu Min's side of the purchase of Yao Ce's house, is it a loan or a gift? </h1>
If the capital contribution of the property under Yao Ce's name comes from Xu Min's side, there may be two legal determinations as to the nature of the capital contribution: loan or gift. Different determinations will have different legal consequences.
(1) First, let's see if Xu Min's party claims that the lending relationship can be established.
If the loan relationship is established, Xu Min's party can claim the return of the loan and require Yao Ce's heirs to bear the liability for debt repayment within the scope of inheriting Yao Ce's estate. In this case, although Xu Min's side cannot enjoy the interest in the appreciation part of the house, it can at least keep the "principal".
So, if Xu Min's side claims that the capital he made to buy a house for Yao Ce is a loan to ask the heirs to return, will it be supported?
This was controversial in previous trial practice, and there was once a considerable number of cases supporting the establishment of the lending relationship, especially in the case of the divorce of the children and the couple, the parents advocated the loan, and the approval of their own children even wrote the "IOU", because the bank flow can prove that the money is actually used for the husband and wife to buy a house together, so while the loan relationship is recognized, it is also determined to be the joint debt of the couple. However, at the same time, there is also a view that according to folk tradition, parents pay for the purchase of houses for their children, generally for the purpose of gifts, and rarely want their children to return them. It is only because the children divorce and divide the property, the parents only repent, and one of the children, in order to fight for the interests of the property, naturally cooperates with or even colludes with the parents to make false expressions of intention, so even if the loan is approved, it can only be between the parents and children, and cannot be bound to the other party.
The above controversy has been around for quite some time, and in the publicly reported cases, both cases of support and non-support for the establishment of the lending relationship can be found.
The author is concerned that the SPC recently further clarified in the Judicial Interpretation (I) of the Marriage and Family Code of the < Civil Code (I) > Understanding and Application" that parents will not support the loan relationship without clear evidence. Therefore, there is another extreme interpretation on the Internet, that the parents' contribution will be recognized as a gift and no longer be recognized as a loan? In fact, the SPC's tendency to taste the SPC is not so, the SPC only emphasizes that parents have a burden of proof for the nature of the contribution, if the parents contribute, explicitly require the children to issue a real "IOU", in the case of bank flow can prove that the loan is also actually delivered, the loan should still be found to be established, and if it can be further proved that the loan was used for the husband and wife to buy a house for common life, it can still be recognized as the joint property of the husband and wife according to law, but the burden of proof on the parents is heavier.
Specific to the 28-year swap case, from public information, Xu Min's party funded Yao Ce to buy a house, there should be no IOUs and other evidence that can prove that it is a loan relationship, therefore, in this case, if Xu Min claims to return the loan, according to the above-mentioned SPC tendentious opinion, Xu Min may bear adverse consequences because he cannot produce evidence.
(2) Let's take a look at whether Xu Minfang's capital contribution is legally a gift.
As mentioned above, according to the folk tradition, parents pay for the purchase of a house for their children, in the absence of a clear agreement, based on specific family affection and culture, the parents' original intention is to give to their children is more likely than to borrow, therefore, in the case that Xu Min's party has no evidence to prove that there is an expression of intention to borrow, the capital contribution will be legally recognized as a gift.
In the case of the establishment of the gift, if the house was purchased after Yao Ce's marriage, then, according to China's laws and judicial interpretations, when the house is registered in Yao Ce's name, it is regarded as a gift from Xu Min's party to Yao Ce and does not belong to yao Ce's joint property; if it is registered with Yao Ce's husband and wife, it is regarded as a gift to Yao Ce and his wife, which belongs to Yao Ce's joint marital property.
<h1 class="pgc-h-arrow-right" data-track="77" >3. If it is determined that the contribution of Xu Min's party is a gift, can Xu Min claim to revoke the gift? </h1>
According to Chinese law, the donor can generally revoke the donation contract before the donation takes effect, but if there is no statutory reason after the donation takes effect, the donation cannot be revoked. As to when a gift takes effect, the law provides that where a gift of movable property is made, it shall take effect from the date of delivery, and if the gift of the immovable property is made, it shall take effect from the registration of the change in the immovable property (i.e. the transfer).
In this case, since Xu Min's party only funded Yao Ce to buy a house, and did not transfer the property under his original name to Yao Ce, if the gift was established, it would be more accurate to determine that it belonged to the gift of the house purchase rather than the gift of the property. However, whether the gift is a capital contribution or a real estate, it has been delivered or registered, the gift contract has become effective, there is no statutory reason, and it cannot be revoked. If the donation cannot be revoked, Xu Min's side will face a passive situation of not being able to get back the property or capital contribution.
So, can Xu Min's side revoke the gift? This can be discussed on two levels.
The first level: Is there a statutory reason for revocation of the gift contract in this case?
As mentioned earlier, after the gift takes effect, it cannot be revoked unless there is a statutory reason, on the contrary, when there is a statutory reason, the donation can still be revoked after it takes effect, so what is the statutory reason here?
Regarding the statutory grounds or conditions for the revocation of a gift, Article 192 of the previous Contract Law and the current Civil Code make the same provisions:
In any of the following circumstances, the donor may revoke the donation:
(1) Seriously infringing upon the donor or the donor's close relatives;
(2) Having an obligation to support the donor and failing to perform it;
(3) Failure to perform the obligations stipulated in the gift contract. The donor's right of revocation shall be exercised within one year from the date on which the donor knows or should have known the reason for the revocation.
Compared with the above three situations, judging from the public information, this case does not meet the requirements, so there is no statutory reason for revocation of the gift contract in this case.
The second level: is the case a revocable contract or a revocable civil act?
Although there is no statutory reason for revocation of the gift in this case, if there is a revocable contract or a revocable civil act, according to the law, after the contract is revoked, the property obtained under the contract should be returned to the other party, and if the loss is caused, the liability is shared according to the degree of fault.
In law, revocable contracts or civil acts mainly include contracts concluded due to fraud, coercion, taking advantage of others, obvious unfairness, material misunderstanding, etc. In contrast to this case, many netizens have mentioned in the discussion that Xu Min donated the capital contribution or real estate because he mistakenly believed that Yao Ce was his own son, and now it is confirmed that Yao Ce is not his own child, and the basis for the original gift does not exist, so it should be returned. In fact, this situation is in line with the "material misunderstanding" in the aforementioned avoidable contract situation.
Therefore, in this case, it was found that Xu Min's donation of real estate or capital contribution to Yao Ce was a revocable contract due to material misunderstanding, and there should be no problem. However, whether Xu Min's party can revoke the gift contract and then claim the return of the property or purchase price faces a big legal obstacle, that is, the time limit for the exercise of the right of revocation.
China's current Civil Code stipulates that if a contract is rescinded due to a major misunderstanding, the parties shall exercise it within ninety days from the date on which they know or should have known the cause of revocation, otherwise, the right of revocation will be extinguished, and this period is a period of exclusion, and the suspension of interruption shall not be applicable, as long as this period has elapsed, the right of revocation will be lost.
In this case, judging from the public information, Xu Min's side should have known in February 2020 that Yao Ce was not his own son, and at this time should have known the revocable reasons, and he only sued in 2021, which obviously exceeded the 90-day period for the use of the right of revocation.
However, some careful netizens pointed out that before the Civil Code, the Contract Law also provided for the revocation of the contract due to a major misunderstanding, and the Contract Law stipulates that the time limit for the exercise of the right of revocation for a major misunderstanding is one year, so the period for the exercise of the right of revocation should be applied in this case, and Xu Min's party initiated the lawsuit just one year before the confirmation that Miao Ce was not biological, so there was no longer a period for the exercise of the right of revocation. However, after the Contract Law and before the Civil Code, There is also a General Provisions of the Civil Law in China, and in the General Provisions of the Civil Law, the period of use for the revocation of civil acts due to major misunderstandings is also 90 days, which has a conflict between the application of the new law and the old law, the common law and the special law, and there will also be some controversy.
<h1 class="pgc-h-arrow-right" data-track="88" > fourth, Xu Min's side wants to return the property or other ideas for capital contribution</h1>
As mentioned above, judging from the current practice and the SPC's inclination opinions, it is difficult for Xu Min's side to fund the purchase of a house for Yao Ce to be considered a loan, and there is no statutory reason for revocation of the gift, and if the donation contract is revoked with a material misunderstanding, it may also face the dilemma of exceeding the period for exercising the right of revocation.
So, if the above ways do not work, does Xu Min's side have a better idea? The author believes that some breakthrough points may be found in the provisions of China's civil law such as unjust enrichment, the principle of public order and good customs, and the principle of fairness.
Of course, perhaps the parties and their lawyers have already adopted a better strategy and have a better way, we, as the onlookers, just because of this case more thinking and discussion, hope to be able to use this classic case to popularize some legal common sense, if we can play a little reference role for the parties to the case or the adjudication, it is better. #Legal people raise cases to popularize the law ##错换人生28 years ##法律 #
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