The Research On The Legal Problems Of Betrothal Gift Of Our Country

Betrothal gift, derived from the Book of Rites, also known as dowry, the bride price, is the property which the groom pays a certain amount of money to the bride’s family to fix a marriage. From the Western Zhou Dynasty to the Republic of China, betrothal gift has become one of the most important procedures when the couples get married. Even in modern society, effected by Chinese traditional culture and customs, giving betrothal gift is still prevalent in most regions of China. Betrothal does play an important role in traditional Chinese marriage customs. Betrothal gift, as a symbol of contracting parties in the engagement, is phenomenon associated with betrothal. Whether at the beginning of the Western Zhou Dynasty or the feudal society to the late Qing Dynasty, the institution of marriage in our country has made clear regulations about the betrothal and betrothal gift. This form of marriage has been extended to the Republic of China. Embodying the principle of the monogamy and equality, "the six laws" stipulates the content of the betrothal. Since our country abolished "the six laws", the betrothal would disappear in our law systems. After the founding of new China, marriage law does not give a clear definition of the betrothal gift.Marriage only refers to the two sides setting up marriage but does not contain the betrothal gift. Based on this consideration, the marriage law of our country does not give clear regulations about the betrothal gift. No matter theoretically or the practically speaking, the betrothal gift is not an isolated activity. Betrothal gift is closely related to both sides that are going to get married. In most areas of China, the betrothal gift is the preceding procedure of the marriage. If a man gives betrothal gift to his fiancee, however, they do not get married in the end.. How to deal with the disputes of the betrothal gift? Chinese marriage and family laws never give clear regulations. Until the promulgation of the interpretation of the Marriage Law of PRC (Ⅱ) was put in force, the word of "betrothal gifts" arises again. However, due to the generality of its provisions and lack of unified standards in practice, a series of questions arise, this interpretation has been widely criticized. This restricts the implementation of marriage law on the family, person, property protection function. It is not easy to create a harmonious and healthy relationship. We should respect its existence, necessity, and particularity of betrothal gift dispute in modern time, though the analysis of the return of betrothal gift system to find the shortcomings, to modify the supplement of the marriage law.The author briefly tells the significance as well as the background analysis which has much theoretical practical significance for us to study the legal problems of betrothal gift at present. Brief introduction of the essay, the author discusses the profound theoretical and practical significance of the Betrothal gift research, and then gives the research purpose of the article. It gives the purpose of the study in this paper and wants lawmakers pay more attention to betrothal gift. It should clarify the betrothal gift, the return of property to carry out the provisions of the system clearly, to make up the gap between the law and reality of life. It focuses on the analysis of the social background of the urgent need to improve the effect of " betrothal gift " the relevant provisions of the law, and drew out the necessity of consummating its content after elaborating the significance of theory and practice.In this paper, the first part is a entry point, analyzing the different definition on the concept of betrothal gift by using the comparative approach. Through distinguishing betrothal gift from similar concepts like it and identifying the various legal properties’analysis about it, I clarify the conception and characters of betrothal gift and then put forward my own opinions.Secondly, by using the examples of proof method, this article analyzed that the betrothal gift from perspective of laws and regulations of our country and proposed its deficiencies according to Chinese current situation. It includes the lack of identifying betrothal gift’s character clearly, defining range of betrothal gift accurately, interpreting foundation of claim for betrothal gift restitution, considering responsibility from the party in fault, confirming the parties in disputing the betrothal gift.Finally, the last chapter is the main part of the article, putting forward the ideas from the following six aspects. Such as, to clear the nature of betrothal gift, to define the scope of betrothal gift, to determine the foundation of claim of betrothal gift restitution, to clear the duty of the parties and the fault the betrothal gift return, to clear the distribution of the burden of proof, to formulate the returning rule of betrothal gift. This section focuses on the countermeasures as perfecting corresponding laws and regulations.