Legal Analysis On Disputes Of Betrothal Gift And Advice On Consummation Of Its Legislation

Betrothal gift, as a marriage tradition prevalent in China for centuries, hasgradually upgraded its way from tradition custom to legitimate provision. Our Statehas undergone a campaign of breaking down feudalistic culture since the founding ofNew China, which becomes a hurdle for betrothal gift system earning a position inmarriage legislation or heated topics for academics’ research. Chinese laws haven’taddressed resolutions for disputes regarding betrothal gift until the promulgation ofthe Interpretation of the Marriage Law of PRC (II), which brought this issue intopublic view through judicial interpretation for the very first time. This judicialinterpretation indeed provided legitimate guidelines for resolution of betrothal giftdisputes, however, due to the generality of its provisions and the lack of unifiedstandards in practice, this interpretation has been widely criticized. I, as a judge of aprimary court, have less exposure to such kind of disputes in my judicial practice butencountered significant difficulties in handling such disputes for the following reasons:(1) given the complication of the case details and crudeness of legal provisions, theparties involved in such a case incline to have misunderstandings in interpreting therelevant laws so as to have unrealistic expectations for a judgment in favor of itself;and (2) given the lack of unified standards for judgment, judicial discretion is easilyabused by judges and even raises challenges of the parties in respect of theimpartiality of the judgment. The above two reasons may impose adverse influence upon the parties in judicial practice and such kind of disputes must be handled withextreme carefulness, otherwise it would lead to serious incidents such asself-mutilation of the parties, intentional injury or homicide, which will impede thestability and solidarity of the society and judicial impartiality and authority.This Article intends to explain the complication and significance of disputesregarding betrothal gift through cases I experienced, and further draws forth thenecessity to conduct researches in this regard. Betrothal gift has been a tradition fromancient times and rendered its influence upon people. It is not practical to prohibitsuch traditional custom, and we should respect its existence, necessity, andparticularity of betrothal gift dispute in modern times, as well as develop properlegislation to govern it.This Article first points out the necessity of researching disputes regardingbetrothal gift through cases,then researches and analyzes relevant legislations interms of betrothal gift disputes after the founding of New China.This Article thenreviews the historical origin of betrothal gift, conduct comparative analysis amongconcepts of betrothal gift and other relevant/similar concepts through comparativemethod, throw light upon the analysis of various theories regarding legal properties ofbetrothal gift and put forward my point of view, so as to clarify the concept, propertyand boundary thereof. In addition, this Article discusses the lack of judgmentprinciples, ambiguity regarding the subject of litigation and inconsistence with ourtraditional customs. It further proposes consummation vision for legislation pertinentto the above mentioned shortcomings and judicial judgment methods for betrothal giftdisputes in light of judicial practices, with the view to contribute to legislationconsummation in this regard.