Research On Returning Rules Of Betrothal Gifts

Betrothal gift is a collection of certain money or property paid by a man to her in order to enter into a marriage with her.At present,there are three different theories about the legal attribute of betrothal gifts in theoretical and practical circles,such as "donation with stop conditions","donation with termination conditions" and "appointment".These three theories have insufficient explanatory power.However,by contrast,"donation with termination conditions" is a better theory.The main function of modern betrothal gifts is to support small families and protect women.The legal basis of the return rules of betrothal gifts is based on the legal attributes and functions of betrothal gifts.The basic rule for the return of betrothal gifts is Article 10 of Interpretation II of the marriage law,and some local courts have also issued some judicial documents to make rules.However,both Article 10 of Interpretation II of marriage law and local judicial documents,there are problems of imperfection and inconsistency in the rules of return of betrothal gifts.In judicial practice,there are some problems in the application of betrothal gifts return rules,such as the lack of legal attribute definition of betrothal gifts,unclear definition of betrothal gifts scope,and different proportions of betrothal gifts return.These problems need to be clarified by empirical investigation.In judicial practice,the most basic,most common and core influencing factor of betrothal gifts return ratio is the length of common life.The ratio of betrothal gifts return is basically proportional to the length of common life.Whether the woman has miscarriage or whether both parties have children is also an important factor affecting the ratio of betrothal gifts return.In the case of the woman's abortion or both parties have children,the proportion of betrothal gifts return is often reduced.The amount of betrothal gifts is also a factor affecting the proportion of betrothal gifts.However,the large amount of betrothal gifts only means the necessity of betrothal gifts return,and does not mean that the proportion of betrothal gifts returned will increase with the increase of betrothal gifts.The reason why the actual use of betrothal gifts affects the proportion of betrothal gifts returned is that the betrothal gifts have been actually consumed,and the part of betrothal gifts used for common life should be deducted accordingly.Other factors affecting the return of betrothal gifts include the fault of the party concerned,family income level or local economic level.The fault of the party concerned mainly refers to the fault that the party concerned cannot conclude marriage relationship or divorce.If the man is at fault,the proportion of betrothal gifts returned should be reduced accordingly;if the woman is at fault,the proportion of betrothal gifts returned can be appropriately increased.In fact,the family income level is the extension of the standard of "living difficulties".The family income level is relative,and the local economic level constitutes the main reference standard for judging the family income level.Local customs and customs or legal principles are also the influencing factors in judicial practice.The former mainly has the function of swearing,while the latter mainly shows preferential protection for women.The empirical study on the cases of betrothal gift return shows that the actual influencing factors and the expected influencing factors are not completely consistent.The actual influencing factors are based on the local social environment,actual national conditions,customs and habits of our country,which has important reference value.Learning from judicial practice and responding to judicial practice is also an important path for the development and perfection of China's legislation.The civil code does not provide for the return rules of betrothal gifts,In this context,the return rules of betrothal gifts should be improved as follows: First,it takes "the length of common life" as the core element of betrothal gift return rules;Second,we should recognize the legal status of the custom of returning betrothal gifts;Thirdly,it introduces the relevant consideration factors of the damage of the women's rights and interests,such as the woman's abortion or the woman's giving birth to children;Fourth,the influence of the actual use of betrothal gifts on the return of betrothal gifts should be clarified;Fifthly,it is clear that the fault of the parties has an impact on the proportion of betrothal gifts return;Sixth,we should replace the influencing factors of living difficulties with the economic level of the payer,supplemented by the comprehensive consideration of the local economic level.The return rule of betrothal gifts ultimately takes the length of common life as the core,combined with other influencing factors to determine the proportion of betrothal gifts return.