Legislative Perfection Of The Rules About Return Of Betrothal Presents

The betrothal present has a history of thousands of years,which still occupies an important position in our traditional culture system today.The meaning of the betrothal presents today is different from the traditional one,which has a better symbol of the meaning and pay more attention to the value of bride price.After thousands of years of baptism,the betrothal presents,regardless of its form or in essence,are different from its original meaning.In form,the betrothal presents just take its good symbol of the meaning at beginning,and then developed to the silk and other valuable items and to cash,houses and cars;in essence,the betrothal presents pay more attention to value.Even so,the purpose that the man wants to conclude a legal marriage with the woman and look forward to living with her for a long time,of the betrothal presents has never changed.Based on this,according to the subject of giving and acceptance,the purpose and the value of betrothal gifts,we can define the specific scope of betrothal gifts and the cost of dinner and a small gift from relatives or friends should not be returned.However,Scholars have different opinions of the nature of the betrothal presents.Currently,there are four views about the nature of the betrothal presents which are the transfer of ownership,gift for purpose,contract theory and certificate of deposit and so on.From the perspective of traditional legal culture,I think there are three meanings of the betrothal presents:ceremony,presents and the evidence.And on this basis,I think the nature of the betrothal presents should be granting with condition,the enclosed condition is that marriage relationship has not been established.Because of advocating the freedom of marriage,the purpose that living together for a long time of giving betrothal presents cant be achieved smoothly.So,the return of betrothal gifts disputes has been becoming legislators unavoidable social reality.In our country,the direct provisions of the return of betrothal gifts can only be found in Judicial interpretation of the marriage law(two)article tenth.Before the introduction of the legal interpretation,bride cases can not be resolved satisfactorily because of the the lack of clear provisions.In such a special social context,the Supreme Court issued the interpretation from the point of view conducive to resolving disputes.But the interpretation is too general,and it can not adapt to the real life of the complex disputes.for example:Firstly,due to the absence of the appropriate system of civil litigation in China's civil procedure law and the unclear provisions of the law,the parties of the various local court are also different.Secondly,the fault of the parties are not be considered by the law,and the reasons of failure to conclude a marriage are also be ignored,which is not conducive to the rights of the woman.Thirdly,there are no specific provisions about the identification of the common life in law,and the protection of substantive marital relations are also be ignored.Fourthly,from the angle of fairness principle and the balance of law and interest,if the purpose of the betrothal presents is not reached,the interests of the man and the woman will be damaged.If the proportion of return is different,it is not conducive to the balance of the two parties.The prototype of the betrothal.presents is a custom,so taking betrothal present rules into the law will be a process,which also means our betrothal presents legislation can not be achieved overnight,but a gradual process:on the basis of respecting folk customs,the Supreme Court can issue a series of guiding cases to regulate the betrothal presents case of the referee.And then according to the investigation of customs and habits,they can seek the correspondence between customs and law.Then the betrothal presents can be risen to the legislative level.First of all,take the program eligibility of the party as a party to the case of betrothal gifts.Second,introduce subjective fault system to the case of betrothal gifts,to determine the amount of the return of betrothal gifts according to their respective fault.Again,from the perspective of protecting substantive marriage relationship,we can regard the time of living together as key factors of the return of betrothal gifts.finally,from the angle of benefit equilibrium,unified the proportion of the return of betrothal gifts.Finally,from the angle of benefit equilibrium,unify the proportion of the return of betrothal gifts.