Perfection Of Judicial Judgment Path Of Betrothal Gifts Return Dispute

As an independent civil cause of action,the number of cases has increased in recent years,but the judgment path as a dispute resolution tool can not really solve various problems caused by the gift and return of betrothal gifts.And the existing research does not pay attention to the betrothal gifts,which leads to the marginalization of this problem both in theory and judicial practice,which does not match the phenomenon of a large number of betrothal gifts problems in reality.Therefore,if we want to really solve the dispute over the return of betrothal gifts,we need to trace back to the source and explore the real reason why the existing judicial judgment path can not solve the practical problems.Through the sorting and analysis of the cases,it can be found that the judicial judgment deviates from the existing legislation in the determination of consideration factors and return results.The direct cause of the problem is the absence of legislative rules to guide judicial adjudication;The fundamental reason is the confusion of the factual and theoretical basis of the judicial tribunal.The concept of betrothal gifts comes from the "Naji" in the six rites of ancient marriage customs.It has feudal color and is difficult to be accepted by modern moral concepts.However,with the development of society,betrothal gifts has begun to change from compensation function to subsidy function.This change makes the betrothal gifts from illegal to legal,which is a social reality that can not be ignored.However,the existing legislation still holds a negative attitude towards the existence of betrothal gifts,which squeezes the living space of most of the existing legitimate betrothal gifts.However,in the process of adjudication,law enforcers have been aware of this change,made up for the legislative defects consciously,and gave full play to the subjective initiative of judges.In addition to the legislative misrepresentation of the factual basis,the theoretical basis on which it is based is also inadaptable.The previous theory that the nature of the gift of betrothal gifts is mostly "gift with cancellation conditions",which is consistent with the view of legislation.However,the defect of this theory is very obvious,that is,the identity relationship and property relationship are bound,and the attribution of betrothal gifts is determined by whether the engagement is made or not,without considering other factors.This kind of binding places the gift of betrothal gifts in a dangerous situation of restricting the freedom of marriage,and seriously ignores the interests of the woman.The existence of the above two reasons leads to the fact that the existing legislation can not really become the judgment basis for the dispute over the return of betrothal gifts,which is only quoted by the judgment documents in form.In order to solve the above problems,we should face up to the transformation of betrothal gifts from compensation function to subsidy function,and determine the nature of betrothal gifts with the theory of "purpose gift".Taking "forming a stable common life relationship" as the purpose of betrothal gift gift can untie the identity relationship and property relationship by measuring the degree of realization of the purpose,and safeguard the interests of the woman in the measurement process.After completing the theoretical analysis,in order to truly solve the dispute over the return of betrothal gifts,the referee path should be improved and reconstructed.The key link is the application of the principle of distinction.In the process of judging,we should distinguish betrothal gift function,quantifiable factors and non quantifiable factors,core influencing factors and non core influencing factors,and finally get a complete and operable judgment path.