On The Marriage

The centuries-old engagement phenomenon is widespread exists in human society. The engagement system hold a important status in the written law in the ancient times of our country, and most of countries took essential regulations and adjustment on it by legislation. Nowadays the marriage-family laws in most of the mainland legal system countries have correlative stipulation regarding the engagement, and the British and American law countries have also established the related engagement system by the case-law form. After the new China had been established, Because of the influence of Marxism-Leninism marriage family view and the political demanding of women's liberation, the written law excluded the engagement contents and attached it to the moral category. But in modern society, massive engagement dissension indicates that the abuse which brought by the absence of engagement legislation has been increasingly obvious, for the legislators should be take sufficient recognitions. Through this article, author attempts to carry on a more systematic analysis and research to the engagement question, and expect to arouse broad attention to it. This article, except the introduction and conclusion, has five parts altogether, approximately 37000 words.Part IElaborate the engagement system historical inheritance and variance, and the character of engagement in early and later times, also analyzed the reason of removing the engagement outside the written law after the establishment of new China. Since the engagement system produced in our country, it has experienced a progress that from variance to withering away in lengthy history. Before the law editing at the end of Qing Dynasty, the engagement systems of all dynasties basically follow the former. The modern engagement system is established under the Western free ideological trend influence, during the last times of Qing Dynasty. After new China had been established, the Marxism-Leninism marriage family view took the dominant status, and the engagement system withered away as which was removed from written law category.Part IIElaborate different theories about the engagement character. There're two kind theories about the engagement character: the contract theory and the non-contract theory. The author proposes a viewpoint that the engagement belongs to the civil contract by analysis. Carried out analysis on the engagement property changing, which is closely correlation to the engagement, the author consider that giving betrothal gifts in the engagement is a conditional dotation behavior and deliver his own point of view on whether the gifts'real right has been changed.Part IIIInterrupt why the engagement phenomenon widely exists, from its social function, custom inheritance, economic basis and so on. The author analyzes the gradually serious problems on handling the engagement dissension in current judicature practice of our country and point out the necessity of engagement legislation from consummating the law functions, protecting legitimate rights of one side ending the agreement, conducting the judicatures practice and many other aspects.Part IVBy consulting the engagement legislation and the judicial practice of Germany, Italy, France, Japan, US, Taiwan, Macao and some other countries or area, author proposes beneficial model for our country engagement legislation.Part VThrough discussion and analysis above, author proposes legislation conception relate to the engagement effectiveness, the engagement condition, and the property processing after ending engagement or the damage compensating. The engagement should be stipulated explicitly that could not petition to implementation and do not have the potency of putting teeth in. it being Where as the tradition of early marring in China, especially parents in countryside always engagement for under age children without consideration their own wishes, although there is little legislation examples in the world, we should make specific stipulations to the engagement condition from the reality. The property return after the ending of engagement should be differentiated. The gifts, which promotes sensation between each other and do not have high value, could be regard as unconditional dotation, do not give returns after the engagement relieved. On the other hand, the betrothal gifts ruled by custom, must be returned after the failure of engagement, for which regarded as conditional dotation. The losing compensate to the relieving of engagement should determine a reasonable scope which concerning the freedom of marriage and opposite parties legitimate rights.