彩礼给付和返还的规范构造

Abstract

Since the founding of P.R. China, the issue of performance and restitution of betrothal gifts has been dealt with in Chinese law not by national law, but only by way of judicial interpretations. Because the law avoids the affiance and emphasizes the distinction between the betrothal gifts and seeking property through marriage, the chinese provisions relating to betrothal gifts have their own characteristics. The newly released Supreme People’s Court’s Provisions on Betrothal Gifts Disputes make up for the absence of Article 5 of the Interpretation I of the Supreme People’s Court on the Application of the “Marriage and Family” Book the Civil Code of the People’s Republic of China in respect of the basis and the scope of restitution of betrothal gifts, and expands on the previous closed rules and the rigid consequences of the “all-or-nothing” rule with flexible provisions on discretionary elements and proportional restitution of betrothal gifts. As a result, Chinese law has formed a relatively independent group of norms on the issue of betrothal gifts. These rules are essentially related to the system of unjust enrichment, but given that the Supreme People's Court has consciously neglected the connection with the doctrinal system of the Law of Obligations on the issue of betrothal gifts, and academic opinions about the legal nature of performance of betrothal gifts in the doctrine is either biased or irrelevant, the method of “Rechtsfolgenverweisung” of unjust enrichment can be adopted. The dispute over the legal nature is of little benefit, the current provisions can be interpreted to incorporate the legal effect of unjust enrichment, while the issues of elimination of enrichment and direct claims against third parties, which are not covered by the current provisions of betrothal gifts, can still be resolved by the following provisions of Article 985 of the Civil Code of the People’s Republic of China.