Keywords: engagement marriage law engagement property
On the identification and treatment of the nature of engagement property in China
Engagement, literally, is an agreement about marriage. Professor Wu Changzhen, a famous marriage and family jurist in China, believes that engagement is a prior agreement between men and women for the purpose of marriage, also known as engagement or engagement. In China, 1950, 1958, 200 1 and the newly revised Marriage Law of the People's Republic of China (hereinafter referred to as the Marriage Law) have no provisions on engagement. Engagement is not a necessary procedure for marriage, but it is not prohibited or protected by the parties to the marriage, so engagement does not produce law for both men and women. Engagement is an agreement made by both parties to get married, but the agreement is mutual consent. Since both parties agree, both parties are obliged to take active or passive actions for the purpose of this agreement. That is, try to promote marriage, get married when the other party reaches or reaches certain conditions, and do not have sexual relations with others or engage in behaviors harmful to the other party within the scope of the agreement. According to Article 2 of People's Republic of China (PRC) Contract Law (note 1), it can be seen that the agreement on marital status is also a contract, which is a contract in the sense of civil law.
First of all, about the nature, characteristics and legal effect of engagement.
(a) Nature and characteristics of the business:
There are two views on the nature of legal engagement: one is contract theory. The engagement, as stipulated in this marriage contract, is a kind of contractual responsibility, which violates the engagement responsibility. Another kind of non-contract says that engagement is a factual stage of marriage, but not a necessary stage, an independent contract or contractual debt. Therefore, no one can sue for marriage according to the engagement, nor can they agree to pay liquidated damages when they fail to perform the engagement.
1, engagement is a certain form of appointment behavior to determine the marriage relationship. Generally speaking, engagement should have a certain ceremony, or be recognized by relatives, friends and people around you through oral agreement.
2. After the engagement is confirmed, there are phenomena such as exchanging tokens or giving away property between the engaged parties. Such as "meeting ceremony", "congenial", "recognizing relatives" and "seeing off" in rural areas.
Generally speaking, cohabitation will not happen at the time of engagement. In reality, many people live together after they get engaged, which is not the original intention of engagement, because it has gone beyond the boundaries of engagement and a de facto marriage relationship has taken place, which belongs to illegal cohabitation. Once the engagement is dissolved, it often leads to disputes.
(2) the legal effect of engagement
Regarding the legal effect of engagement, the attitude of relevant legal interpretations and policies in China is that engagement has no legal effect and marriage is not a necessary procedure, but the state does not prohibit civil engagement. However, in folk customs, especially in rural areas, engagement still has a strong social effect. Once engaged, regardless of whether the parties agree or not, from the outside, the marriage relationship between the men and women concerned has been basically established. With the transfer of property and contacts between relatives and friends, one party's violation of the engagement may bring property losses, deterioration of interpersonal relationships and condemnation of social customs. Therefore, once engaged, either party will face great pressure to cancel. At present, in our society, there is still a phenomenon that parents enter into marriage contracts without the consent of their children. Children who want to dissolve their parents' engagement without consent will inevitably face great difficulties, and some will give up their struggle, compromise, sacrifice their own happiness and even lead to tragedy. Then, in this case, the law can raise the attitude about the validity of marriage contract, which was originally reflected in legal interpretation and civil policy, to law, and clearly declare that marriage contract has no legal effect in marriage law. Either party can dissolve the engagement at any time, which provides a clear legal basis and legal weapon for one party to dissolve the engagement.
China's policies and laws have the following attitudes and principles towards participation:
1. Engagement is not a necessary procedure and condition for marriage. Whether to enter into an engagement is up to the parties themselves, and the law does not interfere. However, the engagement must be entirely voluntary by both men and women, and no other person may interfere forcibly. On June 26th, the Legal Affairs Committee of the Central People's Government issued "Answers to Several Questions about the Implementation of Marriage Law" 1950 (Note 2). On March 9th 1953, the Legal Affairs Committee of the Central People's Government issued a new answer on marriage (Note 3). Since then, in the interpretation of applicable laws and judicial practice in the Supreme People's Court,
The engagement is not legally binding. After the marriage contract is concluded, either party may express its intention to dissolve the marriage contract, and without the consent of the other party, it has the effect of dissolving the marriage contract. This is because marriage is a combination of men and women based on love and voluntary. If one party asks to dissolve the engagement, it means that there is no basic condition for marriage between them and it should be allowed, otherwise it will interfere with the freedom of marriage. Property disputes caused by the dissolution of engagement should be treated differently. The property received by the engagement that belongs to the nature of arranged sale shall be confiscated according to law or returned as appropriate. Anyone who swindles money in the name of engagement shall, in principle, return it to the victim. Gifts for the purpose of marriage (including engagement tokens) with high value shall be returned as appropriate. The donee has no obligation to return the unconditional gift during the engagement period.
3. Property disputes caused by the dissolution of engagement should be treated differently. The property received by the engagement that belongs to the nature of arranged sale shall be confiscated according to law or returned as appropriate. Anyone who swindles money in the name of engagement shall, in principle, return it to the victim. Gifts for the purpose of marriage (including engagement tokens) with high value shall be returned as appropriate. The donee has no obligation to return the unconditional gift during the engagement period.
Second, correctly identifying the nature of the engagement property is the premise and basis for correctly handling the disputes over the engagement property.
The so-called engagement property dispute refers to a dispute in which a man and a woman get a lot of property from each other for specific reasons during their acquaintance and love, and when they can't get married, the party whose property is damaged requests the other party to recover the property. This kind of dispute is more common among the people. The common practice of people's courts in the trial is to distinguish between "demanding" and "receiving" means of obtaining property and deal with them separately. Because Article 3 of China's Marriage Law clearly stipulates that it is forbidden to ask for property through marriage, the property obtained should be returned in full. However, China's marriage law does not stipulate how to solve such disputes when giving each other property in love or betrothed, so in the actual trial process, each judge draws different judgments according to different understandings, lacking unified qualitative and handling standards.
(1) Scholars generally believe that there are three different types of engagement property in practice.
1. Property payment based on buying and selling marriage. This kind of marriage is not based on the feelings of men and women. Instead, parents or other third parties forcibly interfere with the freedom of marriage between men and women, taking the delivery of informal property as the premise of marriage relationship, with the aim of obtaining property and seeking some benefits.
2. Property acquired through marriage. This form of marriage is similar to buying and selling marriage in which the parties or their parents ask for property from each other before marriage, but the difference is that this kind of marriage generally does not go against the wishes of the parties, and the marriage between men and women is often decided under the principle of autonomy and freedom. In practice, this kind of marriage is sometimes far more harmful than buying and selling marriage. The resulting engagement property obviously violates the provisions of the marriage law, so it is illegal.
3. Both men and women care about, help or respect each other's feelings and give each other the property of their parents and relatives. This gift of property is based on the willingness of both men and women, and it is a way of emotional exchange between the two sides. The law does not prohibit it, it should be a gift of property. Because of this, scholars believe that due to the property disputes of the first two kinds of engagement or the dissolution of the engagement between men and women, the engagement property should be returned as appropriate according to the marriage law and relevant judicial interpretations. There is no need to return the property donated or donated to each other because the parties are voluntary.
(2) The author thinks that in practice, the engagement property is not limited to this, and the nature of engagement property must be defined according to the actual situation; When dealing with property disputes of engagement, we should not stick to the above situation. We should pay attention to specific matters under the guidance of legal principles and legal spirit:
1, defrauding property payment within marriage. This kind of marriage has no intention of living together forever. Although engagement or marriage is voluntary, one or both parties to the marriage have no real intention of establishing a marriage relationship and do not aim at living together for life. They often ask for the dissolution of the engagement or divorce in order to fulfill the marriage formalities, cheat each other and the marriage registration office, and achieve political or economic purposes (mainly asking for property). In essence, the payment of property in this form of engagement has gone beyond the scope of asking for property by marriage, and it is often manifested as defrauding property, which is also a violation of criminal law.
2. Both parties have a good emotional foundation before marriage, and one party has no obvious demand behavior before marriage. The other party refers to the local general premarital property payment and pays the other party's property according to local customs and habits, and the payment amount is generally large. This situation exists in large numbers in cities and rural areas, and often occurs in a period before marriage between men and women. At this time, after a period of love, both sides think that the conditions for marriage are ripe, ready to get engaged or hold a wedding. The woman did not take the initiative to invite, while the man thought that a certain "bride price" should be paid according to local customs. This behavior is actually a manifestation of the old marriage concept in China feudal society, a continuation of the old marriage concept formed in China's long-term feudal society, and is contrary to the spirit of the current marriage law.
Some scholars think that the nature of the second kind of property is a gift obligation with conditions or obligations, others think that it should be treated as unjust enrichment, and others think that it belongs to the nature of "getting wealth by marriage". In this regard, the author does not agree. First, although China's General Principles of Civil Law and Contract Law stipulate that most civil legal acts can be attached with conditions or obligations, attaching conditions or obligations to marriage, a special personal relationship, obviously violates the original intention of the law and the legislative spirit of the Marriage Law. The "conditions" (or obligations) in the conditional (or obligation) gift relationship must conform to the principles and provisions of the laws of China, and those that are illegal or have no legal basis shall not be used. In this kind of property payment, the two sides have not agreed on the conditions or obligations of property payment, but taking marriage as the "condition" (or obligation) of the gift relationship is actually imposing this view on the parties, which is obviously inconsistent with the fact that men and women are independent of marriage in this behavior. If the above-mentioned behavior is regarded as a gift with conditions or obligations, it is essentially an acknowledgement of buying and selling marriage and a denial of the autonomy and freedom of marriage, which will promote the development of the old feudal concept of marriage, not conducive to promoting people's transformation to the modern concept of marriage, and not conducive to the legal protection of the special personal relationship of freedom of marriage. Secondly, it conforms to many conditions of unjust enrichment to regard this kind of property as unjust enrichment, but the damage to the interests of the payer is not against his own will, that is, the damage to his interests is related to his own behavior, and the payment is positive and positive, so he does not have the substantive conditions of unjust enrichment. This view is essentially denying the material nature of marriage as a personal relationship. Taking this as the legal basis for the trial of marriage contract property disputes will violate the principle of fairness and justice in civil law and fail to achieve legal and reasonable purposes. Third, it is even more inappropriate to regard this kind of property payment as a form of marriage claiming property. Asking for property by marriage is an act that one party takes engagement and marriage as an opportunity to ask for a lot of property from the other party. "Asking for" is an active behavior of one party, while the payment behavior of the payer is "forced". In this kind of property payment, the payment is voluntary, showing a large number of gifts. Therefore, this view is essentially confusing the legal concepts of "taking" and "giving" and erasing the principle boundary between them.
(3) In practice, the behaviors of buying and selling property in marriage, claiming property by marriage, defrauding property in marriage, and giving each other gifts before marriage are easy to define and often lead to ambiguity. In my opinion, this kind of property should be regarded as a gift for the following reasons:
1. The act of giving property has the nature of a unilateral contract. It is a civil legal act in which one party donates his property to the other party for free and the other party accepts the donated property. In this kind of property payment, the payer's payment behavior is completely voluntary, and the recipient also accepts it voluntarily, which not only conforms to the constitutive requirements of civil legal acts, but also conforms to the formal and substantive requirements of the gift contract.
2. Although this kind of behavior is a traditional "bad habit" left over from China's feudal society, it is not advocated by modern marriage law, but it is not explicitly prohibited by modern marriage law.
3. From the above understanding, it is lack of legal basis to define this kind of property payment behavior as any other civil legal behavior except "gift behavior".
4. Defining it as a "gift of property" is conducive to maintaining the fairness and authority of the law, promoting people, especially rural cadres and masses, to form a modern concept of marriage law and consciously resisting the traditional and feudal "bad habits" of engagement.
Three, adhere to the principle of law, reasonable handling of marital property disputes.
(1) What kind of debt is an engagement property dispute? It should be determined according to different situations. Asking for property by marriage means that one party can make use of its dominant position to enter into marriage or conclude marriage, instead of simply coercing or deceiving the other party to deliver a certain amount of property according to customs and habits. This act violates the provisions of Article 58 of the General Principles of the Civil Law and is an invalid civil act. It can also be understood as tort in a broad sense, resulting in infringing debts between the parties, and its legal consequence is of course to return all or most of them as the case may be. Donation based on engagement does not form a debt relationship between the parties. After the gift is completed, the rights and obligations of both parties disappear, and the donor has no substantive right to ask the other party to return the property. The legal relationship between the above two situations is clear, and there should be no dispute in handling them. But in practice, there are few obvious cases of taking or giving. Usually, the betrothed parties or their relatives refer to the local "market" and their own situation at that time, and after several "offers" and "counter-offers", it is difficult to distinguish whether to solicit customers or give gifts. In this case, there are some differences on what kind of property relationship is formed between the parties and how to determine the rights and obligations of both parties.
? First, it is considered that in this case, whether it is "taking" or "giving" should be determined by carefully examining the specific situation. If the obligee voluntarily gives a certain property, and the other party has no objection, it can be regarded as a "gift". If the debtor makes an offer first and the obligee passively accepts it, it can be regarded as a "request". The provisions of the General Principles of the Civil Law on gifts and the provisions of the Marriage Law on not lending can be applied to the two kinds of identification respectively.
Second, some people think that when "gift" and "demand" are difficult to determine, the theory of "gift" should be adopted. The reason is that the obligee who is regarded as "demand" bears the burden of proof. Since it cannot provide enough evidence to prove that it is a "demand", it can be presumed as a "gift", and the obligee will bear the adverse consequences of failing to provide evidence. After the gift behavior has been established according to law, it is unfounded to demand the return of the bride price according to the General Principles of the Civil Law.
Third, when the two are difficult to determine, the theory of "taking" should be adopted. The reason is that, in most cases, it seems that one party voluntarily gives the property to the other party, but it is actually forced by bad customs, which is not the true intention of the parties. A judge should make such an inference according to his own social experience, and order the obligor to return the property, so as to reflect the healthy social fashion advocated by the judiciary and curb "bad customs".
? The above three viewpoints are quite different, and they all have certain truth, so it is difficult to choose. In practice, many people adopt these three viewpoints, which is also the place where the judicial standards of marital property disputes are very different. In fact, these three viewpoints all have theoretical loopholes and operational defects, which are analyzed one by one below:
The first view, concrete treatment, seems fair, but actually makes a superficial mistake. As mentioned above, giving and accepting the bride price is an inherent custom of establishing and maintaining the engagement, which is recognized by the people around and followed by both parties to the engagement. Just like the conclusion of a contract, as long as both parties reach an agreement, neither the offer nor the commitment will have any influence on the rights and obligations of both parties after the contract is established. At this time, it is meaningless to investigate who first proposed the amount of the engagement property. When the engagement was dissolved, neither the parties nor the third party suggested that this was the decisive factor in determining the property relationship. Therefore, it is biased to determine the legal nature by "initiative" or "initiative".
The second view infers that the ambiguous state is a gift according to the evidence rule of "who advocates and gives evidence", which seems impeccable, but "take" and "give" are not two opposing concepts, that is, the relationship between them is not "either one or the other", which cannot prove that "take" is not necessarily a gift, but there is an "intermediate state" between them, which leads to this neglect. People who hold this view sometimes cite article 19 of the Supreme People's Court's Several Specific Opinions on Handling Property Division in the Trial of Divorce Cases as the basis. In fact, marital property disputes obviously do not meet the applicable conditions of this judicial interpretation.
The third view notes the decisive role of civil custom in engagement, which is wise, but it is debatable to take a completely negative attitude towards this habit.
(2) Through the analysis of the disputes over engagement property, we are required to make different treatments according to different types of engagement property in practice, so as to be legal and reasonable, which not only embodies the principles and spirit of the law but also conforms to the specific actual situation.
1. Although there are great differences between buying and selling marriage and asking for property through marriage, both of them have the characteristics of asking for property, and their actions are illegal, which conforms to the constitutive requirements of invalid civil acts stipulated in the General Principles of Civil Law and Marriage Law. Relatively speaking, dealing with such property disputes has more reliable legal principles and is easier to solve. According to Article 6 1 of the General Principles of Civil Law (Note 5), one party may require the other party to return all or part of the property required for marriage. At the same time, when one party asks the other party to return all the property, it can consider the factors such as the termination of love or divorce after a short marriage, or the life difficulties of the other party caused by asking for gifts, and return it as appropriate according to the spirit of relevant judicial interpretations. The author believes that in the collective operation of hearing cases, the behavior of "one party asking for property through marriage" can also be considered from the following aspects; First, it is a serious violation of the marriage law to ask for property from the other party through marriage, which directly leads to the dissolution of the engagement or divorce of both men and women. The purpose of this kind of behavior is to ask for property, rather than the independent marriage of men and women, so it is necessary to return some or all of the property. Second, the emotional foundation of men and women is weak or no emotional foundation, which leads to the termination of love relationship or short marriage period, divorce, or asking for gifts and other specific problems that cause difficulties for each other's lives. Third, according to the nature of the property itself, that is, whether it belongs to durable consumer goods or consumables, it should be handled according to different situations. General cash or household appliances, motorcycles, gold and silver jewelry and other durable consumer goods should be returned in full; For clothes, cosmetics, daily necessities and other consumables, they cannot be returned or partially returned after depreciation.
2. Some gifts to the other party or the other party's parents and relatives are generally small, which is the true meaning of both parties. They should be regarded as gift contracts and generally will not be returned. This restriction shall not apply if the parties voluntarily return it. It should be noted that the gift of engagement property should be a practical civil legal act, which is different from the gift contract with the nature of social welfare and moral obligation. It must be the actual delivery of the property. If it is only an oral gift agreed by both parties and the property is not delivered, the donee may not ask for delivery, and the donor has no obligation to deliver. So the dissolution of the engagement means the termination of the gift contract.
3. For "one party has no obvious claim", the other party shall pay the other party's property according to local customs. As mentioned above, it should be regarded as a gift of property. The disposal of such property, if not returned, obviously violates the basic principles of civil law, obviously unfair. Therefore, we should take a cautious attitude, neither violating the legal principles nor denying the existence of the actual situation. The author thinks that it can be dealt with from the following aspects: first, if the donee proposes to dissolve the engagement after donation and seriously infringes on the interests of the donor or his close relatives, the donor has the right to cancel the donation, that is, the donee should return all the donated property; Second, if the donee proposes to dissolve the engagement after the donation, and it does not harm the interests of the donor, it shall return the donation amount in full; Third, if the donor proposes to dissolve the engagement after the gift, it can be regarded as a complete gift and cannot be returned; Four, after the gift, for other reasons or through consultation between the two sides reached an agreement to dissolve the engagement, the two sides can first negotiate to solve the large gift of property. If consultation fails, the people's court shall make a judgment on whether to return it according to the actual situation.
4. Cheating the engagement property formed by the engagement is not for the purpose of marriage, which directly leads to the property and mental damage of the other party. Therefore, for this kind of property fraud, after the dissolution or divorce of both parties, the innocent party can request to investigate the criminal responsibility of the other party, and can also request to investigate its civil responsibility, such as returning the defrauded property and requesting spiritual compensation.
To annotate ...
1, "The contract referred to in this Law is an agreement between natural persons, legal persons and other organizations with equal subjects to establish, change and terminate civil rights and obligations, and agreements on identity relations such as marriage, adoption and guardianship shall be governed by other laws."
2. "Engagement is not a necessary procedure for marriage. Any arranged or forced engagement is null and void. The minimum age of voluntary engagement for men and women is 19 and 17 respectively. If one party voluntarily dissolves the engagement, it may notify the other party to dissolve it. "
3. "Engagement is not a necessary means of marriage. The engaged men and women voluntarily listen to their betrothal, and others may not force arrangements. "
4. "It is forbidden to arrange, buy and sell marriages and other acts that interfere with the freedom of marriage, and it is forbidden to ask for property by marriage."
5. After a civil act is deemed invalid or revoked, the property acquired by the parties as a result of the act shall be returned to the party that suffered the loss.