Research On The Legislation Of Engagement

The engagement has a profound history and culture in China.Early in the Western Zhou Dynasty,the dynast enacted relevant laws on the engagement.From common customs to legal regulations and liberalization,engagement has different forms during China's different periods.At present,only the judicial interpretation has provisions about the return of betrothal gifts,Marriage Law has nothing about engagement.It is harmful to systematically understanding engagement and the judicial practice.As the writer,I think that the theoretical research on engagement should be given enough attachment during the process of compiling Civil Code.As a result,we will be able to clearly understand the nature,establishment,effectiveness and dissolution of the engagement,explore the necessity and rationality of engagement legislation,as well as contribute to the trial of related disputes in judicial practice.In addition to the introduction in Chapter 1 and the conclusion in the last chapter,the thesis is divided into four parts:Chapter 2 is a historical study of the engagement in China,and the understanding of the engagement should be traced back to the source.On the background of betrothal marriage,we know that engagement is one of the procedures of formal marriage.In the feudal age when human are negligible like grass,we know that engagement is regarded as a puppet for coemptione.In the era of emancipation,new roles of engagement are given by freedom of marrige and equality of individuals.By clearing up the engagement contract in ancient and modern times,we can understand the important role of engagement in people's daily life.Chapter 3 is a summary and analysis of the problems caused by the lack of engagement legislation in China.Through literature review and case retrieval,promblems in judicial practice include no provisions on engagement and different judgments in the similar cases,which is caused by the absence of engagement legislation.The typical problems include different understanding about the nature of engagement,unclear standard and scope of betrothal gifts returning and the lack of legal provisions for damage compensation after the dissolution,which is not conducive to protecting the legitimate rights and creating difficulties in judicial activities.Chapter 4 is a comparative analysis of engagement legislation in some typical foreign countries and China's Taiwan and Macao.I gain a new horizon by studying legislation at home and abroad,aslo learn about different engagement system,such as the non-actionable situation of engagement and the system of damage compensation after dissolution.Combining the present situation of our coutry,the future of engagement legislation should draw lessons from Germany's provisions on the return of “things symbolizing the sign of engagement”,Switzerland's provisions on “compensation for moral damages” and the United States' provisions on prudent treatment of “breach of engagement”.Besides,we aslo should learn from Taiwan and Macow on the validity of the reason of moral dissolution and the provision on the scope of betrathol gifts in the legislation of engagement and so on.Chapter 5 is based on the analysis of the problems caused by the lack of legislation in the current engagement and puts forward some suggestions for China's future engagement legislation.The specific legislative recommendations include: the establishment of relevant principles on the engagement legislation include the principle of freedom of engagement and respect for the customs;enacting damage-compensating system after dissolution,especialiy the compensation for moral damages.In addition,through discussing and analysing further the standard and scope of returning betrothal gifts in terms of different situation,some suggestions on legislation has been provided.