The Return Of Betrothal Gifts Adjudications' “Demarcation” And “Standard”

Giving betrothal gifts is an indispensable step in Chinese traditional marriage customs.It is also a part of Chinese culture.But it was not admitted by law for a long time because it was deemed to be survivals of feudalism after the People's Republic of China had been established.It was not until 2003 that Article 10 of the Judicial Interpretation of the Marriage Law(II)was introduced that betrothal gifts was reintroduced into China's current legal system.However,this article is not detailed,which has led to differences in the identification of betrothal gifts in theory and practice,and the legal nature of betrothal gifts has many views.Coupled with the ambiguity of the words used in the text,different understandings have arisen in judicial practice.Then it lead to the situation of different sentence in the same case happened.This article attempts to define the scope and nature of betrothal gifts,and analyzes the criteria for betrothal gifts' return.It mainly adopts the case analysis method,and it is not limited to the case of a certain region,but selects several regions to form a comparison,such as Qingyang,Suzhou,Guangdong Province,Shanghai;and then starts analysis and discussion.This article is divided into three parts.The first part is to pose questions which this article will be mention.The second part is to define the scope and legal nature of betrothal gifts.On the issue of the scope of the gift,the paper considers that the gift is not a kind of money,but a type of property that the male family gives to the female family for the purpose of marriage.In estimating the purpose of marriage,multiple factors such as payment time,payment value,and customs should be considered.On the issue of defining the legal nature of betrothal gifts,this paper believes that the current theories on the legal nature of betrothal gifts payment are inadequate and cannot cover all situations stipulated in Article 10 of the Judicial Interpretation of Marriage Law(II).In judicial practice,most cases do not need to determine the legal nature of the betrothal gifts when adjudicating.The judge can adjudicated just according to facts and Article 10 of the Judicial Interpretation of Marriage Law(II).Therefore,from the current point of view,the identification of the legal nature of betrothal gifts has no substantial meaning.The third part is the analysis of the standard for the return of betrothal gifts.The writing idea is based on the three items in Article 10 of the Judicial Interpretation of Marriage Law(II).When the marriage is not registered,first of all,it is necessary to distinguish between cohabitation and co-living.Secondly,we should consider the fault of both parties which lead to the marriage broken.The act of refusing marriage may not be regarded as the fault.Again,death can lead to the termination of the marriage contract,but the death itself cannot affect how many betrothal gifts should be returned.In addition,this article believes that the normal use of the money and the fluctuation of the value of the items will affect the return of the betrothal gift,and the existing benefits should be returned according to the unjust enrichment theory.Finally,the contribution of one party to the other party during the co-living period will also affect the return of the betrothal gift.In the case of divorce after registration of marriage,it mainly involves the determination of two problems.One is not living together actually and the other is make life down and out because of giving betrothal gift.Among them,this article believes that the meaning of "doing not living together" is "doing not live together for a certain period of time".Each region can determine the corresponding minimum time standard based on local actual conditions.In the identification of living difficulties,this article believes that a narrowing explanation should be used and absolute living difficulties should be used to make the judgment criteria more preciseness.In addition,only according to difficulties in life is not enough to apply this clause.It is also necessary to prove that there is a causal relationship between the man's difficulties and the giving the betrothal gift.If the man's life difficulty is not caused by the betrothal gift,or the cause relationship has been interrupted.In such cases,this clause cannot be used to return the betrothal gift.