The Basis Of The Claim For The Return Of Betrothal Gifts

The research on the basis of the claim for the return of betrothal gifts should answer the core question of "who has to ask from whom according to what".At present,the function of betrothal gifts in China has changed from compensation function to subsidy function or a new way of property transfer,but its claim basis has not changed significantly.Betrothal gifts are different from asking for property through marriage,buying and selling marriage,and general gifts.Betrothal gifts are property that one party or one party’s close relatives pay to the other party or their close relatives according to customs for the purpose of concluding marriage.The characteristics of betrothal gifts mainly include two points:first,it has the purpose of marriage;second,there is a local custom of offering betrothal gifts.In terms of nature,betrothal gifts are gifts with termination conditions.Once the termination conditions are fulfilled,the gift will lose its legal reasons,which is in line with the constituent elements of unjust enrichment stipulated in article 985 of the civil code.Unjust enrichment should be determined as the basis of the claim for the return of betrothal gifts.The type of unjust enrichment is the non-existent unjust enrichment for the purpose of performance.The return rules are:when the beneficiary is in good faith,return the existing interests;In the case of asking for property through marriage,if the beneficiary is malicious,he can ask for the return of benefits and compensation for losses.The subject of the claim for the return of betrothal gifts,that is,the parties concerned,includes the actual payer and the actual recipient,but the parents of both parties or the close relatives who pay and receive betrothal gifts cannot be the plaintiff and the defendant alone.At present,the rules of returning betrothal gifts determined in the interpretation of marriage and family in the civil code are actually creative provisions on the return of betrothal gifts in the absence of provisions in the civil code,which is actually beyond the jurisdiction of judicial interpretation.In the process of amending the law in the future,in order to avoid the dispute on the effectiveness of the rules on the return of betrothal gifts stipulated in the judicial interpretation,we should consider bringing the relevant issues of the right to request the return of betrothal gifts into the marriage and family section of the civil code to make specific provisions,so as to change the current legislative situation.It can be specified that in the case of no marriage registration,no living together(including the short time of living together),no marriage registration,long time of living together and even having children,the return can be directly requested in accordance with non enrichment;However,in the case of no marriage registration and living together for a long time,according to the principle of fairness and the principle of protecting women’s rights and interests,the appropriate compensation clause for bona fide beneficiaries should be added.The compensation clause here should be appropriate compensation,rather than appropriate compensation.At the same time,the right to claim for restitution caused by premarital payment after divorce should also be appropriate compensation,So as to fully reflect the fairness of law,and with the return of unjust enrichment rules.