On The Legal Nature Of Bride Price And Its Legislative Perfection

Bride price dispute is more common in the civil trial, the nature of our country for the bride price has not had a clear legal definition, and a lot of defects exist in the provisions of the bride price. Determining the legal nature of bride price in the existing legal framework and improving its legislation is conducive to the resolution of disputes, the building of a harmonious society. In this paper, the main part is divided into four sections to discuss.The first part is on the meaning of bride price and the evolution of research.Bride price generally refers a certain amount of money or in kind given by husband to wife when they are engaged or married, as a marriage or the procedures and logo of their marriage. It has been regarded as a formal marriage rite since the Western Zhou Dynasty's "six-li" or the satisfied levy of "satisfied color, ask the name , Naji, satisfied levy, please view, the pro-greet". Although bride price originated in the marriage system, it not relied on the marriage; it has independent function and value. Bride price is not necessarily contact with the marriage; sometimes the two are independent of each other. Making the marriage contract does not necessarily have to pay bride price, bride price payment doesn't surely mean marriage will happen. In the era of its history, bride price had its positive significance, and its emergence and development was adapt to the level of social productive forces at that time, it was the embodiment of the concept of marriage customs and legal system. The initial price is based on "ceremony" to standardize the form of the institution of marriage, but with the development of the ancient etiquette combination, bride price gradually enters into the Code of law to complete evolution of the state law in form of "Legal" and "Order". However, the nature of modern bride has been completely different from the ancient nature of financial compensation with bride price. It no longer has the force of law, but be Spontaneous for private sector of their own from the traditions and customs. It can be seen that the modern bride price is no more a legal concept, is no longer mandatory and binding, but the evolution has become the existed customs and moral binding in some areas.The second part of bride price of a variety of critical analysis of the nature of the doctrine.About the qualitative of bride price, the main opinions are following: (a) the theory of transferring ownership, also known as gift theory, which regard that the bride price payment is a legitimate and effective gift action; (b) the theory of contract , views that the bride price contract is a contract from the marital relationship, it is entirely dependent on the existence of the marriage contract; (c) the theory of advance deposit of agreement, views that the engagement between the two sides is an act of civil juristic act, marriage is a civil contract, and the bride price is a kind of Security which engagement's both parties agreed in order to fulfill the contract; (d) the theory of Granting with the purpose ,views that the bride price is reached that the marriage for the gift, if the marriage was set up, people may request the return of the gifts; (e) the theory of granting with obligation , views that the bride price payment is an act of gift , but the recipient must fulfill the duty to enter into marriage relations; (f) the theory of the granting with conditions, views that the act of presenting bride price which based on engagement is a qualified civil legal action, is expected to set up the future of marriage as a gift .In the modern legal system, the legal nature of bride price is a gift attached to the lifting of conditions, and the conditions is that the legal marriage is not the conclusion. When the marriage is not concluded, the lifting of conditions, revoke the gift, the donee to keep the loss of the legal basis for the bride price, bride price becomes unjust enrichment, the return of unjust enrichment should be dealt with the rules. If success is not the lifting of conditions, grant the validity of the contract, there is no question of return. However, according to "Marriage Law of Judicial Interpretation (II)" the provisions of Article X, after a divorce, the return of bride price is still the case. The Supreme People's Court from the principle of solving practical problems, the development of a judicial interpretation of the clause. But did not say, in the bride's gift to lift the conditions have disappeared, a gift upon completion of the contract, the need to return the bride price in accordance with the provisions. Gift only cases within the statutory grant to the enjoyment of the right to revoke the contract. And after the conclusion of the legal dissolution of marriage is not in line with the "Contract Law" provides a statutory right to withdraw the case may be exercised. At this point the return of the bride price is based on China's civil law principles of fairness and good faith of the special provisions made. Because the bride price paid the ultimate goal is to enable men and women both parties to conclude the statutory long-term marital relationship and life together. Cited by the judicial interpretation of the latter two cases are contrary to the purpose of a gift of bride price, bride price will not return if the civil law is contrary to the principle of fairness. "Both marriage registration but did not live together," where the return of the bride price is based on the reality of our society, for the protection of the interests of the gift and the basis of civil law principles of fairness and good faith made by the Special Provisions; "pre-marital benefits and lead to payment difficulties of people living the" case of the return of the bride price is based on the Marriage Law of the husband and wife should be the principle of mutual assistance.The third part of the status quo of the bride price and the existence of legislation to set out the deficiencies. For bride price, the law does not specifically require their scattered regulation and approval of the judicial interpretation. Our country has issued a number of judicial interpretations since 1951, for the bride price or dowry questions the Department of Justice explained that in "Marriage Law of Judicial Interpretation (II)" for the bride price to the specific questions applicable provisions. However, the bride price is still flawed legislation, such as the return of bride price pursues too much the form of equity, equality between men and women cause more than the protection of women's lack of benefits; It is existed in the judicial practice that the difficult burden of proof of "living together", the main proceedings is not clear and the conflict of legal interpretation.The fourth part of a comprehensive proposal put forward bride price. In order to solve the problem of the application of the law disputes, we should start from the legal characterization, clear law department at the country location, the principle of the legislation to determine the bride price, bride price in order to improve the legislation. Bride price legislation should respect history and tradition and cultural heritage, focus on the protection of women's rights and freedom of marriage. China's ongoing construction of the socialist legal system is set up a socialist society in the history of the most advanced form of the above, but the same can not be cut and discarded the traditional Chinese culture, and customs of the flesh and blood contact. Marriage with bride price should be included in our country, "Marriage," the scope of the Regulation explicitly as conditions attached to the lifting of the nature of the grant contract, the application of "Contract Law" the relevant provisions, at the same time, based on civil law principles of equity and the principle of good faith to develop the legal dissolution of marriage system after the return of the bride price. Available from the following legislation to improve the price: (1) the "bride price" was written into the Code; (b) a clear legal framework bride price; (c) time as the application of the conditions of the return of bride price; (iv) the introduction of fault principle; (e) a clear legal proceedings and the main limitation of action; (f) enhancing the Court finds that the evidence and second supervision.Law is a culture and a kind of folk memory. Marriage customs of bride price as being a strong country completely abolished after decades still exist in people, and influence people's real life in different ways, it is said that the traditions and customs can not be washed away instantly by country. Bride price will not disappear, respect for the rule of law and the objective reality of history, starting from the settlement of disputes bride price system to regulate the situation and improve the price of legislation, only in this way can the law come to play an indisputable role.