The Application of Creditor's Revocation Right System under Divorce Agreement
The property disposal agreement in the divorce agreement should be applied to the creditor's revocation right system in the Contract Part of the Civil Code by reference.Whether the divorce property disposal agreement constitutes a fraudulent act should be judged according to the"equivalence"standard,and only the proper part of the property disposal that is handled excessively constitutes a fraudulent act.Whether the divorce property disposal agreement is excessive should be judged on the basis of comprehensive consideration of factors such as the situation of the parties at the time of divorce,the principle of divorce property division,the integrality of the divorce agreement,and the standard of child support or divorce damage compensation.The burden of proof of the fraudulent nature of the divorce property disposal agreement should be reversed,that is,as long as the debtor is insolvency when the creditor's right is realized,it can be presumed to be fraudulent,and the counterpart should bear the burden of proof the debtor still has ability to pay off debts when the divorce agreement is signed.The fraudulent act in divorce agreement belongs to gratuitous disposition act,and the exercise of revocation right is not conditional on the counterpart having bad faith.The revocation of fraudulent act in the divorce agreement is a partial revocation,that is,only the proper part of the property disposal that is handled excessively is rescinded within the scope of the claim.For the revocation of inseparable things such as housing,price compensation should be adopted rather than the overall cancellation.The exercise of the right of revocation only causes relative invalidity to creditors and counterparts,and does not affect the validity of the divorce agreement between the debtor and the counterpart.
divorce agreementcreditor's right of revocationequivalencepartial cancellationrelative ineffectiveness
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