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如何应对索要分手费的官司

发布于:2019-03-09 15:48

1、分手协议是不是赠与合同?
 
1. Is the breakup agreement a gift contract?
 
 
 
我国合同法规定,赠与合同是赠与人将自己的财产无偿给予受赠人,受赠人表示接受赠与的合同。赠与合同的特征是一方将自己的财产无偿转移给对方,但以不含有等价、有偿或解除某种关系为前提。
 
According to the contract law of our country, a gift contract is a contract in which the donator gives his property to the donee free of charge, and the donee expresses his acceptance of the gift. The characteristic of a gift contract is that one party transfers its property to the other party free of charge, but on the premise that it does not contain equivalence, compensation or dissolution of a certain relationship.
 
 
 
男方为了解除与女方的同居关系而与其签订分手协议,依据是男方给对方造成一定的伤害。这样就使得协议含有了等价、有偿等条件,违反了赠与合同中“无偿”的本意。因此,分手协议不是赠与合同。
 
In order to dissolve the cohabitation relationship with the woman, the man signed a break-up agreement with her on the basis that the man caused some harm to the other party. In this way, the agreement contains the conditions of equivalence and compensation, which violates the meaning of "free" in the gift contract. Therefore, the break-up agreement is not a gift contract.
 
 
 
一般来说,分手协议里面包含了“分手费”的一些安排,如果是一方自愿给予,法律在所不问,法院也是不干涉的。但是,如果分手协议不属于完全“无偿”的赠与合同,而是带有一些补偿性质的双方约定,那么在法律上也很难得到认可,以此要求法院判决对方给付所谓“分手费” 是很难获得支持的。
 
Generally speaking, the break-up agreement contains some arrangements of "break-up fee". If one party gives it voluntarily, the law does not ask, and the court does not interfere. However, if the break-up agreement does not belong to a completely "free" gift contract, but has some compensation nature of bilateral agreements, then it is also difficult to be recognized in law, so that the court can not obtain support for the so-called "break-up fee" to be awarded by the other party.
 
 
 
2、分手费算是敲诈勒索吗?
 
2. Is the break-up fee blackmail?
 
 
 
所谓的分手费虽说符合情理,但无法律依据。
 
Although the so-called break-up fee is reasonable, it has no legal basis.
 
 
 
敲诈勒索罪,是指以非法占有为目的,对被害人使用威胁或要挟的方法,强行索要公私财物的行为!如果以威胁或要挟手段强行要其"分手费",责构成敲诈勒索罪!
 
The crime of extortion refers to the act of extorting public and private property by threatening or coercing the victim for the purpose of illegal possession. If extortion is imposed by threatening or coercing the "break-up fee", it will constitute extortion.
 
 
 
3、分手后,之前所送财物能否要求返还?
 
3. After breaking up, can you ask for the return of the property you sent before?
 
 
 
我国婚姻法不保护婚约,恋爱关系也不具有法律约束力,解除婚约、中断恋爱关系是当事人的自由权利。任何一方均可随时声明解除婚约。但是,在解除婚约、中断恋爱关系时,往往发生财产纠纷,其主要表现在遭受财产损失的一方要求对方给予财产损失的返还。由此引起的纠纷,在处理时一般遵循以下原则:
 
China's marriage law does not protect the marriage contract, and the love relationship is not legally binding. Releasing the marriage contract and interrupting the love relationship are the free rights of the parties. Any party may at any time declare the dissolution of the engagement. However, property disputes often occur when the marriage contract is terminated or the love relationship is interrupted. The main manifestation of property disputes is that the party who suffers property losses requests the return of property losses from the other party. Disputes arising therefrom are generally handled in accordance with the following principles:
 
 
 
(1)对订婚造成的财产损失,如举行订婚仪式请客送礼耗费的钱财,以及恋爱过程中双方吃喝玩乐共同耗用的财产损失,解除婚约时一般不得要求赔偿;
 
(1) For property losses caused by engagement, such as money and money spent on inviting guests and giving gifts at engagement ceremonies, and property losses shared by both parties in the course of love, compensation shall not generally be claimed when the engagement is terminated;
 
 
 
(2)恋爱、订婚期间,一方赠送给对方亲友的财物,无权要求返还;
 
(2) During the period of love and engagement, property donated by one party to relatives and friends of the other party shall not be entitled to claim return;
 
 
 
(3)订婚、恋爱期间,互赠一些财物,这可以视为一种正常的赠与关系,一方送给对方的财物,如果数量不多,价值不大,一般不得要求返还;
 
(3) During engagement and love, giving each other some property can be regarded as a normal gift relationship. If the amount of property given by one party to the other party is small and its value is small, it is generally not allowed to ask for return.
 
 
 
如果财产数量多,价值大,或者遭受财产损失的一方因送礼或其他花费而导致生活困难,可要求对方全部或部分返还,若赠与物已毁损而不存在,可折价补偿;
 
If the amount of property is large, the value is high, or the party who suffers property loss is difficult to live due to gifts or other expenses, the other party may be required to return all or part of the property. If the gift has been damaged and does not exist, it can be compensated at a discount price.
 
 
 
(4)一方赠与对方的钱物是复员费、转业费、医疗费、伤残费或抚恤金等,如因收受财产一方提出解除婚约或中断恋爱关系,则应返还全部或大部分;
 
(4) The money and property donated by one party to the other party are demobilization fee, transfer fee, medical fee, disability fee or pension. If the receiving party proposes to terminate the marriage contract or break the love relationship, all or most of the money and property shall be returned.
 
 
 
(5) 一方亲友赠送给双方的财物,一般不能要求返还;对借婚约、恋爱为手段骗取钱财的,如果情节轻微,则应给予批评教育,要求追还财物;如果情节严重,构成犯罪的,还要追究刑事责任。
 
(5) Property donated by one party's relatives and friends to both parties can not generally be returned; those who cheat money by means of marriage or love should be criticized and educated if the circumstances are minor, and the property should be recovered; if the circumstances are serious and constitute a crime, criminal responsibility should also be investigated.

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