The Research On The Nature And The Legal Regulation Of The Betrothal Gifts

Betrothal gifts as a marriage custom has a long history in China, still exists in modernsociety. At present, the law of our country does not specify the betrothal gifts, the betrothalgifts also did not cause sufficient attention. With the development of economy, the materiallife of the rich, the concept, connotation and nature of betrothal gifts is also development andchange. Based on the thorough investigation to the traditional betrothal gifts, pointed out thatbetrothal gifts is not only custom in our country, but a strict system of etiquette and law tofurther clarify the concept and the legal nature of the betrothal gifts, analyzes the legal rulesof the betrothal gifts, discusses various betrothal gifts in practice from the payment of thenature, subject, scope and effectiveness, through the analysis and thinking, put forward somebetrothal legislation should perfect. In addition to the introduction and conclusion, this paperconsists of three parts:The first part: Betrothal gifts is a property that is should be both men and women or aparty give the other party or family in accordance with the custom, the purpose is marriage.The betrothal gifts must possess the following substantive requirements and proceduralrequirements, substantial elements:(1) the payment must be the complete willingness of bothmen and women;(2) the betrothal gifts must comply with the local custom;(3) the purpose ismarriage. Program requirements: the betrothal gifts to pay party and the receiving party meetin person, consult the range of the betrothal gifts and pay.The Confucian rites, the patriarchal clan system of that men enjoy higher status thanwomen,.and the traditional legal culture of regardless of rite and law, there is a specialsignificance on the formation and continuation of the betrothal gifts. The betrothal gifts is theresult of Confucian cultural and social psychology and the mode of Confucian thinking, this isthe betrothal gifts prevails and social foundation so far. This is the bride price prevails andcontinuation of social foundation so far. The author introduced the relationship between thebetrothal gifts and relevant legal concept, that is,"the engagement" betrothal gift "obtainingproperty by marriage","marriage" and "improper benefit" have similarities, but they have theessential difference;The second part: Through a comparative study of traditional law culture and the current"marriage law"(two), that betrothal gifts is the performance of "ceremony" of Chinese lawculture, should belongs to the bilateral legal act in the current judicial interpretation, is a kindof contract;The third part: The betrothal gifts is a product of China’s traditional legal culture, thelegal nature of betrothal gifts payment is the behavior with the offer means, subject ofbetrothal gifts payment is not limited to men and women themselves, should also include theparents, close relatives and other interested parties; the payment need to comply with theprinciple of the public order and good customs, equality, fairness etc.;The return of the betrothal gifts has three kinds of situations, that is "shall return, toreturn and no return"; the subject of betrothal gifts is procedural parties; the limitation of action of the return of betrothal gifts shortened to one year; rebuttal burden of proof in thereturn of the betrothal gifts.Relevant provisions of the betrothal gifts in the marriage law should introduce "faultprinciple" and " equitable principle "; think over the time of men and women living togetheror common life, should be specified to return;"marriage law"(account for two) in the thirdparagraph tenth for provisions and the "marriage law" forty-second article repeat and shouldbe deleted; the return of betrothal gifts should draw lessons from foreign legislation,introducing the system of the compensation for damages.