| Betrothal gift is a traditional marriage custom among Chinese people,which has the meaning of making engagement a letter since ancient times.Although the concept of bride price is not clearly defined in Chinese law,in real life,bride price usually refers to the property given by the man to the woman for the purpose of concluding marriage according to local customs.Betrothal gifts are different from arranged,buying and selling betrothal money of the nature of marriage and asking for property through marriage.It is not prohibited by law and has its rationality.In modern society,although whether to enter into a marriage contract is no longer bound by the law,there is still a close relationship between the marriage contract and the bride price.When the marriage contract is dissolved,the bride price needs to be returned according to certain rules.Distinguishing betrothal gifts from general gifts during love is also conducive to determining the scope of betrothal gifts in disputes over the return of betrothal gifts.There are many views on the legal nature of betrothal gifts in China’s academic circles.Among them,the "gift with lifting conditions" in the "conditional gift theory" is more in line with the actual situation of betrothal gifts in China and is a more reasonable theory.At present,Article 5 of the judicial interpretation of the civil code on marriage and family（I）promulgated by the Supreme People’s court is the basic rule followed by disputes over the return of betrothal gifts in China.Some local courts have also refined it through some judicial documents.Through case analysis,this thesis finds that there are still some problems in the application of this rule in judicial practice.Specifically,it includes: the obligee and obligor are not clear enough,the scope of bride price return is not clearly defined,the proportion of bride price return is not unified,and it is difficult to define the "living difficulties" in the rules.In this context,combined with the relevant views of practice and academia,this thesis puts forward the following suggestions on the legal rules of bride price return: from the perspective of improving the applicable principles of bride price return disputes,we should implement the principle of protecting women’s rights and interests,consider the factors that damage women’s rights and interests,and appropriately reduce the proportion of bride price return according to whether the woman has miscarried or whether both parties have children.Second,clarify the impact of the fault principle on the return of betrothal gifts.From the perspective of specific suggestions to improve the rules of bride price return,it is first necessary to clarify the obligee and obligor of the return.If the marriage has been registered,the obligee and obligor to be returned are only the men and women themselves.If there is no marriage registration,in principle,it is also the engaged man and woman themselves.The paying party can also take the parents as the joint plaintiff according to whether they live together with their parents and whether they use family property;If the recipient lives with his parents and uses the bride price for his family,he may,at the choice of the plaintiff,take his parents as co defendants and jointly bear the responsibility for the return of the bride price.Second,clarify the scope of the return of betrothal gifts,and take the purpose of payment and the size of value as the main judgment standard.Large amounts of cash,gold and silver jewelry and other high-value properties donated for the purpose of marriage should be treated as betrothal gifts.In combination with local customs,items such as family heritage with special commemorative significance can also be treated as bride price gifts.Third,recognize the legal source status of the custom of bride price return,and make reasonable,legal and reasonable judgment on the basis of respecting local customs.Fourth,clarify the standard of living together.The most important factor affecting the return of betrothal gifts and the return proportion of betrothal gifts is the length of common life.The return proportion of betrothal gifts should decrease with the increase of common life.Fifth,clarify the impact of the actual use of the bride price on the return of the bride price,and determine the return proportion according to the actual situation.Sixth,clarify the judgment standard of living difficulties,comprehensively consider the factors affecting their living difficulties,and make a comparison according to the payer’s family living standard and the local living standard. |
