The Wedding Contract And Its Legislation Conception

This article is divided into four sections in all, whose basic contents include:The first section has proved historical development of wedding contract and its present condition. Wedding contract, also called engagement or being engaged, is a beforehand promise made by the two parties of man and woman aiming at getting married in the future. Seeing from the historical development, it started from trade marriage. Engagement systems in the east and west both have long history. Wedding contract system in different dynasties would show some different time features with different contents. But it has going on as a kind of system, which emphasizes the legal effectiveness of wedding contract. Wedding contract is the prerequisite of getting married and action violating wedding contract will be punished rigidly. After the establishment of P.R. China, there are three marriage laws having been enacted, which do not make concrete stipulations on problems of wedding contract. Engagement is no longer a necessary procedure to get married. The attribute on wedding contract is neither promotion nor prohibition. However, in many places of our country, especially in villages and outlying mountain areas, engagement is still regarded as a habit procedure and even a necessary procedure before marriage. Amount of betrothal gifts provided is also increasing. Once the contract is removed, issue will of course be caused by properties. Because of not having any written stipulations, it is more and more difficult for judicial authority to handle it.The second section has proved nature of wedding contract and nature of property in detail. Problem of wedding contract is not only a moral one, but also a lawful one. Wedding contract is a kind of common social phenomenon having great influence on the personal relationship and property benefit of parties concerned. When the wedding contract is made, the man will provide the woman will some gifts and after the contract, property exchange between the two parties will also happen. In reality, there are quite a few issues caused by wedding contract, which is now having a trend of rising. Therefore, we should respect social realism and regulate action of wedding contract by making laws. Wedding contract could be regarded as a kind of deed in nature, which is not only a kind of deed of creditor's rights, but also a kind of relative deed. It has concepts as freedom and equality contained in the deed. The two parties are also equal in personal relationship and property relationship. The two principles in the wedding contract are unanimous with the two connotations—freedom and equality in the deed. On the nature of property of wedding contract, there are three theories in academic circles: the first is presentation with obligation; the second is presentation with removing conditions; the third is presentation with goals. The author agrees with Theory of Presentation with Goals, for the reason why the donor presents property to the other party is to reach the goal of getting married with the other party. If the relationship of man and wife wished by the donor is not established, which means the goal of presenting and accepting property is not reached, the accepting of property by the donee will be not proper. The donor has the right to ask the donee to return the gifts. In comparison, presentation with goals could better explain the nature of property under wedding contract. Presentation with obligation regards the marriage as the obligation appointed in the presentation, while presentation with removing conditions regards not being able to get married between the two parties as the condition to remove the presentation. They both violate the basic principle of free marriage.The third section proves the necessity to establish modern system of wedding contract. Establishing modern system of wedding contract has realistic meaning. Modern system of wedding contract is unanimous with free marriage. On the one hand, during the whole procedure of making wedding contract, the principle of will self-governing by the parties concerned will be implemented from the beginning to the end. Based on willingness and equality, the man and woman will establish a wedding contract after negotiation. Any one party should not force the other party to establish the contract. The establishment of the contract is based on the affection of the two parties. On the other hand, the implementation of the contract is based on the willingness of the two parties. After the establishment of the contract, based on the change and development of affection between the two parties, the contract could be removed upon agreement of the two parties and any one of them. Generally speaking, they will not undertake any legal liability. Establishing modern system of wedding contract could fill the blank in the legislation of marriage law and fully exert the value and functions of marriage law. The actual existing of problems about wedding contract requires us to list it in the adjustment of marriage law to reach the goal of guiding, evaluating and dredging engagement behavior between the parties concerned by lawful regulations. Establishing modern system of wedding contract is helpful to solve issue caused by the wedding contract in reality, for issue caused by the wedding contract is complex involving the effectiveness of wedding contract, ownership of property between the two parties and their relatives and compensation liability of the party having made mistakes, etc. if the party concerned bring a lawsuit into the court, problems of wedding contract will be in the embracing condition with large amounts of occurrence but without corresponding legal adjustment because there is no relevant stipulations in law and the court could not refuse to accept the case upon no written stipulations in law. This will cause confusion on the execution by law enforcement authority.The fourth section has provided legislation concept of establishing system of wedding contract in our country aiming at the lack of legislation in the marriage law of our country. Firstly, conditions under which the wedding contract will be made definite is that the contract must be established under the willingness of the two parties; the parties concerned should reach their legal age of getting married and they should have full civil capacity; the two parties must have no spouses; the two parties should have no blood line relationship under which marriage is forbidden and the wedding contract should be in written form. Secondly, the effectiveness of wedding contract should be made definite. The wedding contract has binding forces to both the two parties. They should abide the wedding contract without removing it as they please. Otherwise, they should undertake corresponding legal reliability. The wedding contract has personal nature. When any one of the party is not willing to implement the contract, he/she should not be forced to implement it. At that time only other civil rescue countermeasure should be adopted. Thirdly, property treatment after divorce should be made definite. (1) The subject in the issue caused by the property of wedding contract should be made definite. The man and woman removing the wedding contract should be the lawsuit subject in the issue of property caused by the contract. In special time, the parents of the two parties could join in the lawsuit as the third party. Because the property in the wedding contract should be attached in the wedding contract, it will be generated upon the establishment of wedding contract; once the relationship in the wedding contract is removed, the property relationship will be removed too. The lawsuit joined by the man and woman in the wedding contract will be helpful to solve the dispute. If the parents of the donee are checked to have received property in the wedding contract, they could join in the lawsuit as the third party, which is good to end the case. Issue of property in the wedding contract of minors could regard the man and wife in the contract as the parties concerned and their parents will join in the lawsuit as the legal agents. (2) Concrete principles to handle the issue caused by the property in the wedding contract should be made definite. The nature of property in the wedding contract is a kind of presentation with goals. If the wedding contract is removed, the donor will have the right to ask the donee to return the gifts. The lowest amount to be returned amount the properties received should be made definite. For the value not great and consumed, the donor should not ask for return. For the property with large value, proper return proportion according to the law should be determined based on caring for woman and the party without fault. The handling of several special conditions: for trade marriage, properties received should be owned by the state; for gaining money by cheating under the name of engagement, the criminal responsibility should be traced for the one corresponding to the crime; if one party in the wedding contract is dead, properties presented will not be returned; the properties presented by the third party outside the wedding contract should be returned. (3) Presenting time and scope of the properties should be clear. The time period of presentation starts from the establishment of the wedding contract and ends with wedding contract removing. Properties presented in this time will be regarded as within the scope of property issue of wedding contract. Finally, compensation liability of the party making mistakes should be made clear. After the wedding contract is established, the obligation of marriage should be implemented by the willingness of the two parties concerned. If non performance of any one party occurs, the other party should not request the court to force that party to implement according the lawsuit procedure. After the wedding contract is removed, the party making mistakes should undertake compensation liability. A wedding contract is a quite special kind of deed, which is not only a deed of creditor's right but also a relative deed. The scope of compensation includes property destroying compensation and spirit destroying compensation. Property destroying compensation includes the rental paid in the use of marriage, debt undertaking, reasonable fees as purchasing full dress and trousseau. For cohabitation before marriage, the law and morality in our country will not agree. Thus spirit destroying compensation will not be supported during the wedding contract. If the man is willing to pay for this kind of compensation, the law will not forbid.