| Paying betrothal gifts before marriage and entering into a marriage contract are traditional marriage customs in my country and are still widely recognized today.The people of our country attach importance to marriage,funerals,and their expenditures on the property of each family account for an important proportion.Among them,betrothal gifts are an important part of the expenditures due to marriage.Therefore,when the engagement cannot be achieved,their attribution to the betrothal gifts is often prone to disputes,especially when the betrothal gifts are expensive.However,due to the unclear original betrothal gift return rules and contradicting the long-standing custom of gift return in China,there are significant differences in the handling standards of gift return disputes by the courts in judicial practice,and the newly-issued Civil Code not only does not improve the old The rules for the return of the dowry,even without the establishment of relevant rules,if the relevant judicial interpretations are not issued as soon as possible to supplement the dowry return rules,after the implementation of the Civil Code,the handling of disputes for the return of the dowry will face an embarrassing situation that cannot be relied upon.Examining the wedding ceremony system in our country's history,in the marriage model of patrilocal residence in ancient China,the betrothal gifts assumed the function of making up for the woman's family's economic and emotional losses.Paying a betrothal gift is not only a necessary procedure for concluding a legal marriage,but also a deposit for expressing the marriage intention and promising to marry.Therefore,China has always had the custom of " When the man breach of a marriage promise,he cannot withdraw the betrothal gift he gave before marriage ".Since modern times,the Marriage Law has established the principles of freedom of marriage and equality between men and women.The establishment of a marriage contract has changed from status behavior to marriage appointment in the statutes of various countries.It no longer has a mandatory effect.After the marriage contract is cancelled,the gift due to the original marriage contract shall be returned.The rules of marriage contract property in the marriage and family law in modern China borrowed from the marriage contract property rules in the civil law system,abolished the personal attributes of the marriage contract,and also guaranteed the right of loss-free compensation.After the founding of New China,because the betrothal gift of gifts partially coincided with the “Asking for property through marriage”,in order toestablish and promote the modern concept of marriage,the legislators did not set up the rules of marriage contract and wedding ceremony in the Marriage Law,only emphasizing the principle of prohibiting marriage for property.The custom of betrothal gifts did not disappear because of the avoidance of the enactment of laws.Paying betrothal gifts in today's marriage and family life bears the functions of intergenerational transfer of family wealth and the adjustment mechanism of the marriage market,so it continues as a traditional marriage custom.It is widely recognized by the public.Moreover,as the value of betrothal gifts increases,the number of betrothal gifts return disputes increases,and the Supreme People's Court therefore stipulates the handling rules for betrothal gifts return disputes in the Judicial Interpretation of Marriage Law(2).The rule revolves around the principle of prohibiting the use of marriage to obtain property,and it is also to curb the trend of " expensive betrothal gifts" in recent years,that is,to support the right of the gift-paying party to return the gift after the marriage purpose has not been achieved,or to cause marriage difficulties due to the payment of the gift The right to request the return of the betrothal gifts after the divorce.This provision emphasizes equality between men and women,and should not be used to obtain property through marriage.However,on the one hand,the provision only stipulates the circumstances in which the gift should be returned.It is too extensive,and there is still a lack of uniformity on some of the focus issues in the return of the gift.The standard of judgement is embodied in the scope of the ceremony is not clear;the main body of the case is confusion;marriage registration is used as the primary criterion for judging whether a marriage has been reached,ignoring the fact that there is a long-term factual marriage that has not been registered;the standard for determining the amount of return of the ceremony Different.On the other hand,ignoring the reasonable trust interests of the no-fault party in the dissolution of the marriage contract is also contrary to my country's long-standing betrothal gifts rules.In May this year,the National People's Congress passed the "Civil Code",but the marriage and family editors did not set the rules for the return of gifts.Considering that the wedding ceremony is not only a traditional marriage custom in our country,but it still has practical significance and will exist for a long time.Furthermore,due to the localization of the civil code and the old judicial interpretations,it has been unable to adapt to today's complicated practice of return of the wedding ceremony,the legislator should be active In the follow-up relevant judicial interpretations,the rules regarding the return of colored gifts are added,specifically including: firstly,the scope of the colored gifts is a gift due to customs,that is,the gifts and jewelry generated by the customs in the marriage contractare all gifts,and the voluntary gift for the promotion of feelings It should be regarded as a general gift in the contract law.Secondly,it is determined that the parties involved in the return of the betrothal gifts should include relatives(mainly parents)of both parties to the marriage contract,unless there is evidence that they did not participate in the betrothal gifts.Reconstruct the return of the betrothal gifts,according to the nature of the betrothal gifts,and set the betrothal gifts return rules to be the betrothal gifts to be returned if the marriage purpose is not achieved,including those who have not registered for marriage or have lived together for less than one month after the marriage registration.Except for 5years and more than 5 years of de facto marriage.Finally,according to the fault situation in the divorce damages compensation,the right to claim damages for the party without fault in the termination of the marriage contract is established. |
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