| The engagement still exists in our real life as life as an old system in our society. It is an integral and important part of our families and legal culture, which reflects the national identity, regional character and the historical continuity of our engagement traditions. The engagement is implied sex discrimination and differential treatment during the whole process as customs. Our scholars study a lot of issues on engagement, but most of them are confined to traditional research methods and can't reveal the implied sex discrimination and differential treatment. Theory of gender has a strong critical spirit for relations between the sexes, researching on root and essence of social relations and systems from gender relations. Thus it has become a new strong powerful tool of political, economic and cultural analysis. We can find that there are many inadequacy of the provisions and gaps in present Marriage Law from the perspective of gender.This thesis is divided into four parts:The first part introduces the meaning of engagement and the legislative status. The thesis begins with the concept of engagement and summarizes five characteristics of the modern engagement: first, the engagement must be voluntary for both men and women instead of prohibiting and enforcing arrangement; second, it is not necessary for the engagement ceremony to act; third, engagement is only the preparation of engagement, it is not a necessary procedure; fourth, a formal contract aims at engagement; fifth, dissolution of the engagement is free and shall not be forced to carry out the request. History is like a mirror, we can not only to get experience, but also to allow people to face up to the reality and look to the future. The author analyses the legislative summary of the status through reviewing the history of engagement.The second part introduces the meaning of gender analysis and its value for perfecting legislation of engagement. It is necessary to have the law of social development in line with the guidance of the theory, gender analysis of the role will be to act as. Introducing of legislation into engagement gender analysis is of important theoretical value: first, gender analysis of legislation for the perfecting engagement opens up a new analytic horizon; second, it offers decision-making and the reference for building the engagement legislation of gender equality. The third part analyzes the legislative shortcomings and the reasons of our engagement through the perspective of gender. Female's subordinate position in engagement are thoroughly demonstrated through the perspective, the provisions of the effectiveness of the engagement is no doubt to strengthen the traditional male chauvinism. The mental and physical damage caused by dissolution of the engagement is unimaginable for women. With the changing times, it is not necessary to engage before getting married, but the custom is still widespread in some areas in our country, women is always in the course of the status of the object. Judging from the selection of bride price, we know that bride price results from the ancient betrothal marriage. Betrothal marriage essentially is a disguised form of trade. However, the bride price seems just the man's patent according to the history and customs. There are not any requirements about the dowry for the woman, causing sex discrimination in the share of equal civil rights. About the age of engagement, the model of engagement of"elder male younger female"has been handed down since ancient times. It is in fact a kind of discrimination against women, which is against the equality of sexes principles. First of all, it forms the uneven distribution of resources; second, it reflects women's role in the ancient engagement; finally, after all, it is also a limitation for men. About the effectiveness of engagement, it fully reflects the legal equality between sexes from the surface, but we can find the gender blind spots under the halo of the equality through the gender perspective. On dissolution of engagement, we can clearly see the disadvantageous status for women. Real-life disputes are due to bride price, the subject of the property returned is just for the woman. The result of the application from the Supreme People's Court on the application of Marriage Law of People's Republic of China and interpretation of a number of issues, the rights of men and women are not equal, men can claim the return of bride price, but the woman's dowry is not protected by law. The dissolution of engagement also causes the other party the spiritual damage and so on; in particular, women lose the fertility or other significant personal injury due to engagement or cohabitation. It is the omission of the legislature because legislation lacks effective relief way. We can see that women are still in a subordinate position from a gender perspective mainly based on the following reasons: first, the reasons of historical tradition. There is thousands of years'history of inequality between sexes in our country, the impact of traditional gender attitudes deeply rooted in gender inequality as a deep cultural structure and social psychology, are still largely influencing the national and social awareness of gender; second, the economic and social reasons. The traditional division of society led to the institutionalization of the economic life of inequality, gender inequality in economic life to share the results of production and labor. It is the underlying causes of inequality; third, law and relevant factors.The fourth part is about the advices of engagement legislation. It is very urgent and necessary to perfect engagement legislation based on our reality and the history and tradition: first, it is an essential requirement for perfecting our Marriage Law; second, it is the inevitable needs integration with the international situation; third, it is the practical requirements to resolve disputes in the daily lives. There are also the feasibilities: first, engagement has become possible into the legislation due to the socio-economic system in transition; second, to perfect legislation is not against to the principle of the freedom of engagement. Therefore, I suggest that we should add a separate chapter about" engagement" issues and make specific provisions in our Marriage Law. Specific recommendations are as follows: first of all, regarding the establishment of engagement should add provisions about the age of engagement. The parties shall be voluntary to make based on modern principles of autonomy in our civil law. At the same time, Marriage Law should provide that:"making engagement does not apply to the agent system; agent of the engagement shall be void."Engagement legislation should take into account legislation of the world, the"bride price"should be renamed"engagement gifts"and make comprehensive provisions on the return; secondly, regarding the effect of engagement, in view of engagement has a strong physical nature, we can not fulfill its mandatory when a party unwilling to fulfill the engagement except other civil remedies. Therefore, Marriage Law can be clearly stipulated:"the parties of the engagement (including military) are on a legally binding, but can not suit for engagement or engagement-based performance;"finally regarding the dissolution of engagement, we should deal with the property separately according to different purpose. Based on our feudal tradition, the dissolution of engagement also causes damage of the spirit .Therefore, Marriage Law should be stipulated:"after the dissolution of engagement, compensation should be made up for the innocent party who suffers a major mental damage during the engagement."... |
