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Research On The Returning Rules Of Bride Price In China

Posted on:2021-03-26Degree:MasterType:Thesis
Country:ChinaCandidate:Y T ChengFull Text:PDF
GTID:2416330620471782Subject:Law
Abstract/Summary:PDF Full Text Request
Bride-price,as a property that is paid based on customs and for the purpose of establishing a marriage relationship,has a basis for being returned when the marriage relationship is not established and the premise of bride-price disappears.The reason why bride-price can be returned is not only the support of jurisprudence,but also the clear rules and regulations in China.In the aspect of jurisprudence,if the bride-price is paid as a gift with conditions for cancellation,when the conditions for cancellation take an effect,the gift will be invalid.From the perspective of rules,according to the judicial interpretation,it is stipulated that there are several situations in which the bride-price should be partially or completely returned.As for the specific circumstances in which the bride-price should be returned,the legislation in the 1970 s and 1980 s only involves the rules for the treatment of marriage payments,such as mercenary marriage and obtaining properties by marriage.It was until the Supreme People’s Court explained several issues concerning the application of the Marriage Law of the People’s Republic of China(2)for the first time that China clearly defined the premise of returning the bride-price.The refund rule of bride-price fully implements the spirit of China ’s marriage legislation,which can provide a trial basis for bride-price disputes,resolve disputes between relative parties,and maintain social harmony.It plays an important role in judicial trials and real life.However,the refund rule of bride-price is restricted by the legislative situation itself,social concepts and the working conditions of the judiciary.Relevant regulations are insufficient and started late.There are still some limitations such as insufficient consideration,failure to protect the rights and interests of vulnerable parties,failure to take into account the actual use of bride-price,failure to define the time limit for the return of bride-price and the scope of the parties involved in the return of bride-price,and unclear provisions on the nature of bride-price.All these limitations may lead to the differences in the judgment results when the local courts judge the cases of bride-price return,and the judgment results are difficult to be unified.In order to break these limitations,we need to work together from both the legislative and judicial perspectives by using the empirical research,comparative research and gender analysis.In the aspect of legislation,the issue of bride-price return urgently needs to be solved by the legislation of the National People’s Congress.We should adhere to the principle of liability for fault,the principle of marriage freedom guarantee,and the principle of considering folk custom.The rule of bride-price return still needs to be detailed.The proportion of returned bride-price should be quantified by taking into account the total amount of bride-price,the time when both parties live together,the fault degree of one or both parties,whether the woman is pregnant,the subject who proposes to terminate the engagement and the actual consumption degree of bride-price.The percentage of the returned bride-price in bride-price dispute cases generally fluctuates between 40%-80% of the total value of bride-price.In the case that other factors are the same,it can be considered that the influence of the quantitative factors above on the total return proportion of bride price is about 5%-20% as appropriate.In judicial practice,the amount and the proportion of the returned bride-price and what property shall be included in the scope of the bride price are the key and difficult points for the court to deal with the cases of bride-price dispute.The specific quantitative rules and the definition of the scope of bride-price can make the results of local trials tend to be fair and unified.In the judicial aspect,we should adhere to the principle of fairness and justice,the principle of flexible proof,and the principle of mediation.The cases of bride-price return are usually related to a small family and two big families.In judicial application,we should not only resolve the contradictions between the two parties,but also protect the interests of the individual,especially the vulnerable party.We should not only crack down on illegal activities such as asking for property by marriage and mercenary marriage,but also ensure the normal operation of the bride price return system.Only by perfecting the relevant legislation and judicial application of the bride-price return can we reduce the appeal rate of the bride-price return case,resolve conflicts and disputes,strengthen judicial credibility,and give full play to the role of law in resolving disputes.
Keywords/Search Tags:Bride-price Return, Rules, Limitations
PDF Full Text Request
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