Study On Some Problems Concerning Engagement To Marry

Law of Marriage that promulgated in 1950,1980,2001 has no provision related to engagement to marry. Related judicial interpretations have some provisions which are too rough and far more than systematic. If the disputes concerning engagement to marry have been resorted to the court, the court can not refuse to hear the case just on the reason that the Law makes no provision. Hence the problem of the engagement to marry is placed in a depressed circumstance that appeared annually but has not been adjusted by the systematic provisions. Being short of the systematic law to cite, the judges have to turn to the legal theory and limited judicial interpretation which certainly will cause different sentences according to similar cases. Judgment activities will depend on judge's personal knowledge structure, education background, judgment experience and affection etc. For the reasons above, the research of the related theories shall be strengthened for the guidance of judicatory practice and amendment of Marriage Law. The author hence chooses this problem as a topic and makes some research on legal philosophy from the perspective of civil law for the purpose of bringing more concerns on this issue. I believe the paper will contribute to the theoretical study and judicial application concerning engagement.The first chapter describes the definition, types, legislation evolvement and binding effect of engagement to marry. After discussion of the definition and types of engagement to marry, this part makes a brief introduction to the legislation evolvement of the issue from the perspective of comparative law. Original standpoints for the legal nature, binding effect of engagement to marry have been put forwarded on the basis of some comments on contractual theory and non-contractual theory, as well as other related issues.The second chapter focuses on betrothal gift and dowry which are related to each other. The paper laid emphasis upon the legal nature of betrothal gift, for which different scholars have different opinions. This text lists several theories on it. After analysis of legal theories above-mentioned has been made, my own standpoint is put forwarded. The problem of dowry is involved by few scholars. The fluxion of betrothal gift to the dowry shows the flow of the marriage gift. This paper also studies the legal nature and return of dowry.The third chapter mainly discusses property disposal which involves the invalidation, cancellation and discharge of engagement. The invalidation, cancellation and discharge of engagement will result the return of property. The discharge of engagement will result the return of a betrothal gift and dowry,the return of donation which gived by the betrothed pair or by the third party, the return of particular memento, letter, and photograph, the return of property processing when the betrothed death or suicide.The fourth chapter involves the compensation for engagement to marry which is not just a problem of compensation occurred from contracts or torts . The compensation with respect to the engagement to marry shall be composed of two methods. Deposit rule as to the betrothal should be applied as to a primary remedy. If the amount of compensation for damage that has not been made up through this method, then deficiency of the reliance damages should be made up. Compensation shall be awarded for moral injury.The fifth chapter chiefly discusses the lawmaking and the synopsis critique about suggest items of engagement to marry.