彩礼纠纷的法律分析及立法完善建议
发布时间：2019-02-17 17:27
【摘要】：彩礼，作为一种婚嫁风俗，在我国已经盛行千年，它逐渐从风俗上升到法的层面。我国建国后，因为破除封建文化的需要，它始终未能进入婚姻法的殿堂，它也未成为我国学者研究的主流。直到我国《婚姻法解释（二）》的出台，如何处理彩礼纠纷首次以司法解释的形式回归人们视野。该司法解释的适用，一度填补了该类纠纷处理的法律空缺，但因其自身存在规定过于笼统、实践中缺乏统一标准等问题，也为人们所诟病。笔者作为一名基层法院的法官，在审判实践中，接触的、见识该类案件数量与其他类型案件相比较不算多，但处理却极不易，一是因为案情的纷繁复杂及法律规定的粗浅，易使当事人对法律的规定产生误读，产生对案件的审判结果对己有利的不切实际的期待；二是因为该解释缺乏统一裁判标准，易造成法官自由裁量权的滥用，也易引起当事人对裁判结果公正性的怀疑。故在审判实践中，由于前两者因素对当事人的影响，该类案件处理稍有不慎，就极易引发当事人自残、故意伤害、甚至杀人等极端恶性事件，影响了社会的安定团结，也影响了司法的公正与权威。 本文试图通过笔者亲历的案件，来说明现在彩礼类纠纷的复杂性及严重性，从而引出对彩礼纠纷研究的必要性。彩礼从古至今一直存在，影响着人们的生活，在现今社会我们不可能禁止该习俗，就应正视它存在的现实性、必要性，以及现今彩礼纠纷的特殊性，进而研究及制定适宜的法律来规制它。 本文先从案例引出研究彩礼纠纷的必要性并查找分析了我国建国后与彩礼纠纷有关的相关立法；然后从历史回顾来认识彩礼的起源，通过比较法，将与彩礼有关的或者相近的概念进行比较分析，了解各学说对彩礼的法律性质分析，，并提出自己的观点，使得彩礼的概念、性质及界限得以明确；再次本文针对《婚姻法解释（二）》的规定指出了其存在缺乏裁判原则、诉讼主体不明确、与我国习俗不相适用等诸多不足，并对上述所提出的不足之处提出了针对性的立法完善构想；最后联系审判实践，笔者提出了处理彩礼纠纷时的司法裁判方式及以期可以为彩礼纠纷立法的完善贡献自己的力量。
[Abstract]:Bride price, as a marriage custom, has been prevailing for thousands of years in our country, and it gradually rises from custom to law. After the founding of the people's Republic of China, because of the need to break the feudal culture, it has never entered the palace of marriage law, nor has it become the mainstream of the study of Chinese scholars. Until the interpretation of Marriage Law (2) came out, how to deal with the dispute of bride price came back to people's field of vision for the first time in the form of judicial interpretation. The application of the judicial interpretation, once filled the legal vacancy of this kind of dispute, but because of its own provisions too general, the lack of unified standards in practice and other issues, has also been criticized by people. As a judge of a basic court, in trial practice, the author has come into contact with the fact that the number of such cases is not much compared with other types of cases, but it is extremely difficult to deal with. One reason is that the circumstances of the case are complicated and the legal provisions are shallow. It is easy for the parties to misinterpret the provisions of the law and to produce unrealistic expectations that the trial results of the case will be beneficial to themselves; The other is the lack of uniform standard of judgment, which can easily lead to the abuse of the judge's discretion and the doubt of the justice of the judge's result. Therefore, in trial practice, due to the influence of the first two factors on the parties concerned, a slight carelessness in handling such cases can easily lead to extremely vicious incidents such as self-mutilation, intentional injury, and even homicide, which affect social stability and unity. It also affects the justice and authority of justice. This paper tries to explain the complexity and seriousness of the present disputes of bride price through the cases experienced by the author, which leads to the necessity of the research on the disputes of bride price. The bride price has always existed since ancient times, affecting people's life. In the present society, we cannot prohibit this custom. We should face up to the reality and necessity of its existence, and the particularity of today's bride price disputes. And then study and make appropriate laws to regulate it. In this paper, the necessity of studying the bride price dispute is first introduced from the case, and the relevant legislation related to the bride price dispute after the founding of the people's Republic of China is looked up and analyzed. Then from the historical review to understand the origin of the bride price, through the comparative law, will be related to the bride price or similar concepts for comparative analysis, understand the legal nature of the analysis of the various doctrines, and put forward their own views, so that the concept of bride price, The nature and the boundary are clear; Thirdly, according to the provisions of the interpretation of Marriage Law (2), this paper points out that there is a lack of adjudication principle, the subject of litigation is not clear, and it is not applicable to the customs of our country, and so on. At the same time, the author puts forward some suggestions on the perfection of the legislation. Finally, in connection with the trial practice, the author puts forward the judicial adjudication method when dealing with the bride price dispute and hopes to contribute his own strength to the perfection of the bride price dispute legislation.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.9
本文编号：2425413
[Abstract]:Bride price, as a marriage custom, has been prevailing for thousands of years in our country, and it gradually rises from custom to law. After the founding of the people's Republic of China, because of the need to break the feudal culture, it has never entered the palace of marriage law, nor has it become the mainstream of the study of Chinese scholars. Until the interpretation of Marriage Law (2) came out, how to deal with the dispute of bride price came back to people's field of vision for the first time in the form of judicial interpretation. The application of the judicial interpretation, once filled the legal vacancy of this kind of dispute, but because of its own provisions too general, the lack of unified standards in practice and other issues, has also been criticized by people. As a judge of a basic court, in trial practice, the author has come into contact with the fact that the number of such cases is not much compared with other types of cases, but it is extremely difficult to deal with. One reason is that the circumstances of the case are complicated and the legal provisions are shallow. It is easy for the parties to misinterpret the provisions of the law and to produce unrealistic expectations that the trial results of the case will be beneficial to themselves; The other is the lack of uniform standard of judgment, which can easily lead to the abuse of the judge's discretion and the doubt of the justice of the judge's result. Therefore, in trial practice, due to the influence of the first two factors on the parties concerned, a slight carelessness in handling such cases can easily lead to extremely vicious incidents such as self-mutilation, intentional injury, and even homicide, which affect social stability and unity. It also affects the justice and authority of justice. This paper tries to explain the complexity and seriousness of the present disputes of bride price through the cases experienced by the author, which leads to the necessity of the research on the disputes of bride price. The bride price has always existed since ancient times, affecting people's life. In the present society, we cannot prohibit this custom. We should face up to the reality and necessity of its existence, and the particularity of today's bride price disputes. And then study and make appropriate laws to regulate it. In this paper, the necessity of studying the bride price dispute is first introduced from the case, and the relevant legislation related to the bride price dispute after the founding of the people's Republic of China is looked up and analyzed. Then from the historical review to understand the origin of the bride price, through the comparative law, will be related to the bride price or similar concepts for comparative analysis, understand the legal nature of the analysis of the various doctrines, and put forward their own views, so that the concept of bride price, The nature and the boundary are clear; Thirdly, according to the provisions of the interpretation of Marriage Law (2), this paper points out that there is a lack of adjudication principle, the subject of litigation is not clear, and it is not applicable to the customs of our country, and so on. At the same time, the author puts forward some suggestions on the perfection of the legislation. Finally, in connection with the trial practice, the author puts forward the judicial adjudication method when dealing with the bride price dispute and hopes to contribute his own strength to the perfection of the bride price dispute legislation.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.9
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