| In ancient China,betrothal gifts have dual rights and interests of identity and property.Once the payment is completed,it indicates the establishment of the engagement and the transfer of property rights and interests.The engagement is valid without legal circumstances,and the betrothal gifts will not be refunded.Those who violate the betrothal gifts will be punished by law.At present,the folk marriage customs still abide by this tradition,and it is a common practice for the wrongdoer to bear the risk of betrothal gift loss.However,since the first marriage law was promulgated to the current "Civil Code" came into being,China has not held a clear attitude towards engagement and betrothal gifts in the field of marriage and family legislation.Although the civil code and relevant judicial interpretation provide reference and basis for the settlement of such disputes,there are many deficiencies in the substantive provisions and procedural operation.In addition,the huge differences between the regulations on the return of betrothal gifts in the interpretation and the traditional folk customs also bring great pressure to the trial and execution of the case.Although in the trial practice,judges rely on their own social experience,trial experience and understanding of laws and regulations to form the value judgment of cases,so as to make up for the lack of legal regulation,it is inevitable that a large number of cases with the same situation or similar cases have different evaluation standards,which leads to the litigation participants’ doubts about the fairness of the trial work.Therefore,the return of betrothal gifts should be based on the three aspects of system improvement,respect for customs and promotion of ethics,so as to reduce the differences in the trial of cases,restrict the power of discretion,and form the benign governance effect of law on society,so as to maintain a stable and harmonious social situation.This paper first analyzes the legal and social attributes of betrothal gifts,and then puts forward the understanding of the concept of betrothal gifts,highlighting the purpose of the behavior and the agreement of both sides.It also analyzes the main theories on the nature of betrothal gifts,and expounds the rationality of the donation theory with termination conditions.Then,taking history as the main line,this paper combs the attitude of the law to the betrothal ceremony custom and the regulation of the betrothal ceremony behavior in different historical periods,which lays a historical and cultural foundation for this paper to put forward relevant legislative and judicial suggestions on the return of betrothal ceremony.Then it forms a macro understanding of the return of betrothal gifts through empirical research.Search the first instance cases of such cases in Jiangsu area to analyze and sort out the problems found in the trial practice.At the same time,we carry out a questionnaire survey on the related issues of betrothal gifts,pay attention to the data collection from the perspective of different genders,and serve the data obtained in the follow-up part of the article to study the return rules of betrothal gifts.Finally,it analyzes the practical problems of the return of betrothal gifts in the judicial application,puts forward the relevant principles of dispute disposal,puts forward reasonable suggestions from both the substantive and procedural aspects,and demonstrates them.At the same time,it proposes to develop a diversified conflict resolution mechanism. |
