A Study Of The Legal Issues In Disputes Over The Return Of The Bride Price In China

The bride price is an important folk marriage custom in China.Disputes over the return of the bride price are widespread among the people.Article 5 of the Judicial Interpretation(I)of the Marriage and Family Part of the Civil Code of China contains direct provisions on the return of the bride price.However,such provisions are general and do not correspond to folk customary practice.This has led to the problem of inconsistent yardsticks and standards among the courts in dealing with such disputes.This is not only detrimental to the resolution of disputes,but also hinders the establishment of the seriousness and fairness of judicial decisions.The first chapter contains a brief description of the cases,a summary of the key points of judgment and a summary of the issues.Taking the three typical cases as the starting point,there are three main issues in judicial practice: the subject of litigation,the scope of the return of the bride price and the proportion of the return of the bride price.The second chapter provides a specific analysis of the issues.Regarding the subject of litigation,the judicial interpretation of parties should be expanded.The parties should be the man,the woman and their relatives(mainly the parents).With regard to the definition of the scope of the return of the bride price,the principle of public order or good morals should be followed first.The nature of the bride price is a gift with conditions for dissolution.Secondly,the two main criteria for determining a bride price are "for the purpose of contracting a marriage" and "in accordance with custom".Finally,the general gifts do not fall under the category of the bride price.The general gifts in the context of bride price mainly include gifts of courtesy and small gifts of affection between a man and a woman during their relationship.Gold and silver jewellery such as "three pieces of gold" are usually part of the bride price.The wedding banquet expenses and honoraria for matchmakers are not generally considered to be a kind of bride price.With regard to the proportion of the return of the bride price,the length of time spent together should be the main criterion,supplemented by factors such as the hardship and the fault.First,the formation of a de facto conjugal partnership is the macro principle for determining the existence of a common life,with two years as a sufficiently long period of common life and less than one year for a short period of common life as a specific criterion.Generally speaking,the degree of realization of common life largely influences the percentage of the return of the bride price.In principle,the bride price that flows into common life is not refundable.Secondly,in practice,the determination of hardship is strict,mainly based on the size of the bride price,combined with the economic level of both parties and the local economic level,to determine that the payment of the bride price has caused hardship to the man’s family.At the same time,evidence of family hardship should be determined by a combination of legality,objectivity and relevance.Finally,the fault mainly includes having an inappropriate relationship with a third person,drug addiction,alcoholism,domestic violence and other situations.If the marriage contract is dissolved due to the man’s unilateral fault,the woman’s responsibility for the return of the bride price could be reduced.The third chapter contains the conclusions and recommendations of the study.The subject of litigation for the dispute includes both parties and their parents.In judicial practice,the following are commonly included in the scope of the bride price:cash explicitly specified as the bride price,the larger amount of the "meet and greet" gift,gold and silver jewellery and the larger amount of property that is clearly different from the general gift.In most cases,those that do not fall within the scope of the bride price include: wedding banquet expenses,honoraria for matchmakers and general gifts.The consideration of the proportion of the return of the bride price should be based on the factor of living together,supplemented by other factors such as pre-marital prestation causing hardship and fault.There are still cases of solicitation of property through marriage and mercenary marriage.And the phenomenon of sky-high bride price is still a common occurrence.But the bride price has also taken on a new value and function.The bride price carries ethical values and has the function of supporting new families by the elders on both sides.Grasping the social functions and values behind the bride price can help the judicial trial of the disputes.The trials of bride price return disputes should follow the principle of maintaining the harmony and stability of marriage and family,the principle of combination between the current law and custom,and the principle of the protection of the legitimate rights and interests of women and children.The construction of modern law rules on the return of the bride price should not only reflect the respect for excellent traditional customs,but also adapt to the requirements of modern society for marriage ethics and morality,in order to achieve the unification of the legal and social effects of judicial decisions.