| The engagement system has been stipulated in special section of the Kinship Law of the Civil Code of the Republic of China.Although the legal system of the invalid engagement does not expressly stipulated in the Kinship Law,this system has already been established at the legal level.However,after the promulgation and implementation of the Kinship Law,this system has not immediately been appeared in the judicial practice.The reason is that the stereotyped routine which deals with invalid engagements by taking action to dismiss them with traditional methods is a common routine measure at the early stage.This system has experienced a slow evolution from the period of immaturity to the period of settlement.The introduction of the Supreme Court landmark jurisprudence means that the system of engagement invalid has slowly evolved from the transition period to the settlement stage.During the period of the Republic of China,the phenomenon of parents representing their children to make engagements is more popular,and the phenomenon of both sides making engagements in the period of immaturity or youth is not also uncommon.Therefore,it is logical and well reasoned that the Kinship Law has stipulated the system of nullity of engagement.Since the founding of the People's Republic of China,the legislation has followed the example of the Soviet Union.The marriage law is divorced from the entire civil law system,leading to the result that it becomes one of the independent legal departments.Although the status of the marriage law has seemingly been improved,it has also been cut off the umbilical cord of the entire civil law.The marriage law that likes the water without a source can not obtain more nourishment from the profound and extensive theory of civil law,leading to the result that the engagement theory study can not make an effective breakthrough in a very long period of time.Since there is the one-sided understanding of the issues of engagement on the national policy level,the engagement problem is difficult to entering the legal issues.I found that,up to now,my academic monograph which is called "Study on the Legal Issues of Engagement in the Republic of China" is the only book on the topic of the study of the the engagement legal issues related to the Nanjing National Government.There are also many master's degree theses and other journal papers to discuss the above topic,but their contents are more fragmented and their theoretical depths are not enough.In regard to this topic,the introduction of the textbooks in colleges and universities related to the history of legal system and related to marriage and family law is also brief.If we examine the legal system of the engagement in the Republic of China,we can see that there are rich research results in scholar monographs,lots of judgments of Supreme Court and local courts at all levels,and massive announcements as well as many legal questions and expert advises published in newspapers and magazines.Through the salvage of these fragments,we can initially restore the general framework of the invalid engagement system from the theoretical and practical aspects.This paper attempts to connect the internal logic relationship between the Republic of China and the contemporary society,and carry out consultations across time and space between them.This article attempts to pay attention to the combination of theory and practice,broaden the research field of perspective by various methods such as historical research,normative analysis,case study,comparative study and construction of the concept.Based on the depth analysis of the system of invalid engagement in the Republic of China,this article choose the legal system of invalid engagement as the entrance to analyze the whole engagement law system.In addition to the introduction part and the conclusion part,there are six chapters in this article.The main points of each chapter and the conclusion part are summarized as follows.The first chapter discusses the transition and evolution of modern engagement.This chapter analyzes the transformation from four aspects such as weakening of parental authority and struggling freedom of marriage.This chapter not only briefly introduces the legislative evolution from the Draft of the Qing Civil Law to the Kinship Law of the Civil Code of the Republic of China,but also makes a brief comparative study between the engagement system of the Kinship Law of the Civil Code and the legal system of the traditional betrothal.The traditional betrothal in our ancient laws and folk customs has been taken seriously.The influence of western law has promoted the renewal of the law in China.Although the parental right of dominating the marriage has been denied at the legal level,it can not be synchronously updated with the provisions of the law at the folk social level.At the legal level,"parental commands" has been transformed into the consent of the parents,and "matchmaker's words" has been evolved into the introduction of the matchmaking.Although the so-called freedom of marriage and the so-called woman's liberation seem pretty good,the actual situation is only known by marriage parties.If we analyze the notice in the newspapers,we can also introduce the fact that for the freedom of marriage young boys and girls are struggling in pains,especially before the promulgation of the Kinship Law of the Civil Code.Although the situation has been improved after the promulgation of the Kinship Law of the Civil Code,they are still depressed among the helpless and unable to extricate oneself from an awkward position.The advanced regulations of the Kinship Law of the Civil Code,which mark legal transformation from the traditional marriage to the modern marriage,are worthy of praise.But the over-correct on legal transformation is also obvious.The expression of the over-correct is reflected in the lack of provisions for the return of the ritual and in the lack of the establishment of the engagement form.The traditional marriages take the betrothal as a required necessary procedure.The traditional laws have empowered the traditional betrothal a strong effect.In view of the new civil law has not yet been enacted,the marriage clauses of "the Civil Effective Part of Active Law" are invoked by the Beiyang Government,until the Nanjing National Government promulgates the Civilization of the Republic of China.From the establishment of the revised legal museum in the late Qing Dynasty to the promulgation of the Kinship Law of the Civil Code of the Republic of China,during this period there are four drafts of civil law and five drafts of kinship law.On December 26 th,1930,the Nanjing National Government announced the compilation of the Kinship Law of the Civil Code and promulgated it on May 5th,1931.The Kinship Law of the Civil Code which has followed the provisions of the German Civil echos the old laws and traditional habits,stipulates the engagement in special section,and completely accepts the western marriage contract theory and modern civil law concept that personal relationship can not be forced to fulfill.In addition,the legislation of the Kinship Law of the Civil Code,compared with the oldfangled rules of the traditional betrothal,has its own characteristics.The second chapter analyses the legal construction and the system evolution of the modern engagement.As to the legal character of engagement,this article tends to agree with the view that the engagement is a contract both in kinship law and in debt law.The structural logic of engagement validity refers to four states of the engagement effect.The literal meaning and the real picture of the engagement and extension expanding of invalid engagement are worth exploring.Although there are rigid provisions for the nullity of engagement,there is also flexible design about subsequent ratification in judicial practice.In order to study the evolution of the system of invalid engagement,coordinate analysis of vertical and horizontal section should be taken.Both official and folk are almost surprisingly consistent with the view that engagement is marriage appointment.This marriage appointment that is significantly different from the appointment in debt law is also the expression of the appointment,which embodies the similarities and differences between the family law and the debt law.Although the scholarly monographs in the Republic of China differ in the definition of modern engagement,the concept of engagement is all defined by the principle of modern civil law.The author has been discussed the legal character of engagement in detail.During the Republic of China scholars have also contemplated this point of view.This article tends to agree with the view that the engagement is a contract both in kinship law and in debt law.There is a binding effect in modern engagement.The binding effect of the engagement and the effectiveness of the engagement are one integrity with two sides.However,the effectiveness of modern engagement can not be compared with the effectiveness of the previous traditional betrothal,even less than the effectiveness of other contracts in debt law.The structural logic of engagement validity refers to four states of the engagement effect,that is to say,valid engagement,invalid engagement,revocable engagement and engagement with pending validity.In revealing the effectiveness of the engagement at the same time,the literal meaning and the real picture of the engagement are worth exploring.Invalid engagement,which is only slowly emerge from the womb of engagement dissolution,is not a theoretical mutation.One type of invalid engagement is a marriage agreement that is not made by engagement parties,while the other is an agreement made by engagement parties who have not reached the legal age of engagement.During the Republic of China some scholars have proposed that article 174 is also an element of effectiveness of engagement,while other scholars hold different views on this issue.More common invalid engagements which are made by the parenthood on behalf of the minor children are called autocratic engagements.Autocratic engagement is the logical starting point for studying the ineffectiveness of engagement system.Extension expanding of invalid engagement not only relates to an analysis of the invalidation of the traditional betrothal and the invalidation of marriage,but also relates to an analysis of invalid engagement and approximate concepts of engagement such as valid engagement.The concept of nullity of the traditional betrothal has existed in the judgments and explanatory examples of the supreme judicial organ in early Republican China.The concept of the nullity of traditional betrothal which is stipulated in the second draft of civil law is different from the concept of invalid engagement which is stipulated in the monographs of scholars during the Republic of China.The difference between invalid marriage and invalid engagement is reflected in the provisions of the stipulations,the provisions of the procedure differences,and the provisions of the damages.It is also necessary to distinguish these concepts: invalid engagement,valid engagement,revocable engagement,engagement with pending validity,appealing to request an engagement and engagement is not established(or not exist).The invalid engagement system has been stipulated in special section of the Kinship Law of the Civil Code.In folk society the situation of autocratic engagement that is made by the parenthood on behalf of the minor children has not yet disappeared.If we were rigidly adhere to the legal provisions,then a number of autocratic engagements would be recognized as invalid engagements.Although there are rigid provisions for the nullity of engagement,there is also flexible design related to subsequent ratification in judicial practice.The flexible design related to subsequent ratification is the compromise and reconcile of conflict between the rigid legislative provisions and the deep-rooted folk customs.If there are conclusive evidences to prove the fact that the engagement parties have been subsequently ratified,the engagement will be regarded as a new one.The general expression for the identification of age node of subsequent ratification is presented as "in adulthood".Whether there is a matter of subsequent ratification or not needs for evidence to improve.Both litigious parties,depending on the circumstances,are responsible for the evidences that they are in favor of the facts.In the legislative provisions of the Kinship Law of the Civil Code,we can not find the words of the invalid engagement.The concept of invalid engagement has existed before the promulgation of the Civil Code.The legal system of invalid engagement is put together and restored only by scraping the historical material fragments to be pieced together.In order to study the evolution of the system of invalid engagement,coordinate analysis of vertical and horizontal sections should be taken on the basis of the fact that this chapter should take the notices,the court cases,the law questions and the monographs as the horizontal axis,take the immaturity stage,the transitional stage and the settlement stage as the vertical axis.Chapter three probes the pretrial operation and the pattern analysis of invalid engagement litigation.Through a variety of pretrial relief measures we can uncover the pretrial operation of invalid engagement litigation.Appealing to the court for mediation or filing,withdrawing the lawsuits or reconciling with each other,and urging the settlement of litigation outside by the court,are all revealing the fact that the parties want to draw supports from the court's credibility.Action for confirmation is the only choice for litigation related to the invalid engagement.Counterclaims,files after the litigation request and not rare criminal and civilian cross cases,reflect the confrontation and integration issues of conflict.Remedial means of defeat suit case and the situation of judgment beyond the scope of the referee can also be seen in the judicial practice.Mediation by kinship family is a quite effective mean to eliminate litigation.Mediation by local gentries or rural local organizations is also a feature of mediation during the Republic of China.The records of mediation by kinship family and the examples of grassroots mediation can also be found in formal announcements in the media.The mutual accusations of the invalid engagement have been kicked off before both parties confront in the courtroom.Before the prosecution the parties commissioned a lawyer to send a letter,which is similar to the ultimatum before the lawsuit.There are also many examples of mutual debates before the prosecution.Making something known to everyone is one of the main features of the media announcements.There are many games-playing of heated disputes in the newspapers similar to fierce battles of tongue on the courts.The intensity of vocal opposition in the media is no less than the intensity of the trial.It is also evident that the two sides have been confronted by media announcements before the complaint in the case of litigation.There are a lot of engagement cases that need to ask the court to mediate,because civil cases must be mediated by law.In general,there are pre-litigation procedures that require the court to mediate.There are two situations for urging the court to record the cases which can be inferred through the files of the Shanghai Municipal Archive.One of the situations is to seek the notary effect of the authoritative department on the basis of the decided agreement,while the other is to seek the solution after exhausting the other non-litigation relief.In the files related to engagement litigation of the Shanghai Municipality Archive,there are many cases of withdrawal of self-reconciliation.However,the situation of withdrawal of self-reconciliation is also different.In the court mediation process to persuade the two reconciliation procedures can often be seen for magistrates also hope to end the case as soon as possible.If magistrates have the opportunity to consult or reconcile,they will spare no effort to do it.Action for confirmation in the engagement litigation case has a wide range of applications.For litigation related to the invalid engagement or valid engagement,action for confirmation is the only choice for such litigation.The parties of the engagement should be the subject of action for confirmation that proves the engagement is invalid.The premise of submitting valid engagement litigation is that there is a legal relationship in private law.Action for confirmation shall not be mentioned unless the plaintiff has a legal interest in the confirmation judgment.There are a variety of cases involving the prosecution of counterclaims.The counterclaims,especially counterclaims to claim damages,are more common in the judicial files.It is not advisable to adjudicate if the counterclaim is not instituted.For the post-claim after the litigation request for invalid engagement filing,the more common cases are related to the return of the betrothal gifts or the damages to reimburse.The focus of criminal and civilian cross cases is reflected in the following situations.These cross cases are caused by the robbery incident,caused by fraud and cheating,and caused by inducing minor children out of family.In the judicial practice of the Republic of China,if the plaintiff has mentioned invalid engagement filing,then can he lift the complaint to disannul engagement? This remedial means of defeat suit case is still affirmed by the Shanghai High Court.In addition,the situation of judgment beyond the scope of the referee can also be seen in the judicial practice.Chapter four relates to the fragmentation study of legal culture in the system of invalid engagement.From the implied meaning among the litigation documents,you can see the hierarchy between noble officials and humble people and the sensational local wisdom of the lowly people.The more convenient way of confrontation in the trial of invalid engagement cases is based on the defense of invalid marriage.The tripartite game between litigant parties and judges in the trial of invalid engagement cases is also an interesting topic.The way of examination and judgment of the evidence is either to search for real intentions or to seek self-justification.Free evaluation of evidence and ascertaining common emotional senses should be complementary especially in the examination of the evidence.The potential influence of the vulgar customs and the war factor on the invalid engagement system is available by exploring the extraterritorial factors in the litigation.The analysis of the reasons for the failure can cause profound thinking related to litigation concepts and litigation skills.By examining the litigation files of invalid engagement,it can be seen in the litigation documents that old and new hybrids coexist simultaneously.There are both the trendy fashionable expressions and the legacy of the vulgar customs or old rules.Reflecting the primary performance of the legacy of the vulgar customs is the hierarchy between noble officials and humble people and the sensational expression of the litigant parties.The equitable sequence of both the noble officials and the humble people is actually the performance of inherent weakness of the slaves.The sensational expression of the litigant parties is the inheritance and continuation of the traditional litigation strategy "make a fuss over a trifle".In the case of appealing to request an engagement or appealing to confirm the validity of the engagement,in addition to counterclaim,the more convenient way of confrontation is based on the defense of invalid marriage.The involvement of lawyers makes the tripartite games between litigant parties and judges basically in a balanced situation.Sometimes the inadvertently answers of the parties are also fantastic words.Although one of both litigant parties in the trial can not resort to the upper hand owing to no lawyer participation,sometimes the result will also be fair under the fair judgment of magistrates.In the trial of the case,judges will not rigidly adhere to the words used by parties,often seeking their true intentions.To explore the truth intentions is more concentrated in the cases which are confused by invalidity of the engagement and dissolution of the engagement.These cases are often occurred in the second trials.To compare ascertaining common emotional senses and free evaluation of evidence,we can find out that the proportion of the free evaluation of evidence should be the mainstream,especially in the examination and judgment of the evidence.Free evaluation of evidence has never been excluded from reasonable compatibility.Both sides should be complementary each other.In the litigation cases of invalid engagement,the war factor is not only reflected in the system design of the military invalid engagement,but also reflected in the impact of folk practice of the invalid engagement.The law sets many restrictions to limit military spouses to break off engagements in order to emphasize the protection of military engagement.However,if there were no plot of the subsequent ratification,autocratic engagement would be invalid,owing to the fact that the law does not provide special protections for military engagement.The war factor has also an impact on folk practice of invalid engagement.In spite of the orderly operation of the judicial practice in general under a legal framework,lots of the residual phenomenons of bad customs and old rules have also been appeared in the judicial practice.Bad customs and old rules not only embody in the legacy of the traditional marriage customs,but also embody in the litigation concepts.The legacy of bad customs and old rules is a large obstacle to the effective implementation of the Kinship Law of the Civil Code.Insufficient evidence is one of the important reasons for defeat lawsuit.A party who applies for invalid engagement,he or she should prove the fact that invalid engagement exists and the fact that refusal of ratification exists.If the defendant argues that the engagement is valid,the plaintiff will prove the facts that subsequent ratification exists.But providing the evidence of subsequent ratification often has a certain degree of difficulty.The inappropriate litigation subject will lead to the occurrence of defeat lawsuit.Errors appear in the case of taking non-contracting parties as defendants.Errors also occur in the event of trying to list the defendant in claiming damage to the invalid engagement.Even in the case of mediation,the question of whether the parties are appropriate or not also exists.Court expensive referee costs,plus some illegal fees,disenable some parties who are not strong in strength to continue litigation.The fifth chapter explores a fact that the local chaos occasionally appear in the overall order in judicial practice.The ever-changing judicial practices and theoretical researches can not be synchronized,resulting in the fact that local chaos will occasionally appear in the overall order in judicial practice.Bad customs and old rules are reflected in the litigation mainly on the main performance of "parents make marriage on behalf of their children" and "matchmakers are involved in litigation".Causes of action are often confused with each other.Lots of litigation chaos lead to the fact that the interrogations associated with the invalidity of the engagement are not necessarily consistent with the claims.The root cause of the interrogations inconsistent with the claims lies in adjudication inconsistencies in the dislocation and rupture due to the conflict and adjustment between official voice and folk consciousness and due to the gap between the judicial philosophy and judicial practice.The main reason of the local chaos related to litigation subject is that "parental commands and matchmaker's words" as the core of the traditional autocratic marriage regulation is still lingering in the national consciousness of thinking.The chaos of the litigation subject,which are gradually diminished and extremely rare in the late period of the Republic of China,are more common during the early stage after the Kinship Law of the Civil Code is enacted.Old type of betrothal which more or less affects the consciousness of the people,coupled with the lack of systematic research on modern marriage theory,causes the occurrence of litigation chaos in judicial practice.These causes of action,namely,the engagement is invalid,the engagement is released,the engagement is revocable,the engagement is valid,the engagement with pending validity,and engagement is not established(or not exist),are often confused with each other,and the most confusing cause of action is that both the marriage is invalid and the marriage is released.The reason for the confusion between the invalidity of engagement and the dissolution of engagement is that both the inheritance and fission of judicial practice and the same understanding of the deviation.That is to say,the reason for this is that both horizontal cognitive differences between the high-level elites and the underlying people and vertical inheritance and variation of precedents and authoritative explanation cases and folk customs.The engagement which is not recognized by the law is not necessarily considered ineffective in the folk society.The reason is that there is a conflict between national law and civil habits.Although the invalid engagement can be appealed to relieve in judicial practice,the formulation to dissolution of the invalid engagement is not uncommon.The cognitive differences between the official and the folk can be seek roots in "the Civil Effective Part of Active Law".The evolution and stereotype of the system of invalid engagement,which also caused the so-called jurisprudence complex,are all promoted by jurisprudence of the Supreme Court,resulting in stubborn inertia dependence on the jurisprudence.Chapter six discusses the return of betrothal presents and compensation for damages in the case of invalid engagement.If the engagement is considered invalid,it will relate to the return of betrothal presents and wedding posts.Whether there is damage to the invalid engagement or not has been a questionable topic.This chapter provides a comprehensive analysis about the damage of the invalid engagement from the dual perspectives of theory and practice when the engagement is invalid.How to define the nature of the betrothal presents,how to return betrothal presents when the engagement is invalid,and what is the basis of the claim for return,are all questions worthy of discussion.The Kinship Law of the Civil Code does not express the provisions of the return of the betrothal presents.When the marriage is considered to be invalid,revoked or canceled,the judicial practice generally supports the return of the betrothal presents.If the engagement is adjudicated as invalid,it is necessary for the parties to return the wedding posts as a marriage certificate.Whether it is a lawsuit of invalid engagement or a lawsuit of dissolution of engagement,asking for wedding posts is also regular practices in many local places.The Supreme Court jurisprudence just denies the fact that the provisions of the damages for the invalidity of the engagement can not be invoked in the provisions of the violation of the marriage and does not directly deny the fact that the parties can not claim for damages related to the invalid engagement,nor does it mention whether other provisions can be used to request damages.Most of the grass-roots judicial practices hold a negative view related to the damages for the invalidity of the engagement.The scope of damages is mainly related to whether the engagement fee should be included in the request for compensations or not.According to the analysis of relevant cases,there is no uniform standard for whether the expenses for the engagement fee in the event of invalid engagement should or should not listed as compensation items.The scope of damages also relates to whether the compensation for mental damages should or should not be included.There are also many cases involving compensation for mental damage,from which concretely conclusive observations can not be made.The conclusion of this paper mainly explores not only the progress and the limitation of the legal system of invalid engagement but also its enlightenment to the contemporary legislation.Fairly speaking,the Kinship Law of the Civil Code of the Republic of China is a rare excellent law.The legal system of invalid engagement is worthy of praise.The conclusion of this paper mainly discusses the progress of the legal system of invalid engagement and the progress of the engagement system in the Republic of China.Meanwhile,we also need to mention and analyze the limitation of the system.Through the comparison of its progress and limitation,the author hopes to put forward its inspiration and reference to the contemporary engagement legislation,and then put forward its enlightenment to the contemporary engagement legislation and the contemporary marriage legislation. |
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