彩禮糾紛的法律分析及立法完善建議
發(fā)布時(shí)間：2019-02-17 17:27
【摘要】：彩禮，作為一種婚嫁風(fēng)俗，在我國已經(jīng)盛行千年，它逐漸從風(fēng)俗上升到法的層面。我國建國后，因?yàn)槠瞥饨ㄎ幕男枰�，它始終未能進(jìn)入婚姻法的殿堂，它也未成為我國學(xué)者研究的主流。直到我國《婚姻法解釋（二）》的出臺，如何處理彩禮糾紛首次以司法解釋的形式回歸人們視野。該司法解釋的適用，一度填補(bǔ)了該類糾紛處理的法律空缺，但因其自身存在規(guī)定過于籠統(tǒng)、實(shí)踐中缺乏統(tǒng)一標(biāo)準(zhǔn)等問題，也為人們所詬病。筆者作為一名基層法院的法官，在審判實(shí)踐中，接觸的、見識該類案件數(shù)量與其他類型案件相比較不算多，但處理卻極不易，一是因?yàn)榘盖榈募姺睆?fù)雜及法律規(guī)定的粗淺，易使當(dāng)事人對法律的規(guī)定產(chǎn)生誤讀，產(chǎn)生對案件的審判結(jié)果對己有利的不切實(shí)際的期待；二是因?yàn)樵摻忉屓狈y(tǒng)一裁判標(biāo)準(zhǔn)，易造成法官自由裁量權(quán)的濫用，也易引起當(dāng)事人對裁判結(jié)果公正性的懷疑。故在審判實(shí)踐中，由于前兩者因素對當(dāng)事人的影響，該類案件處理稍有不慎，就極易引發(fā)當(dāng)事人自殘、故意傷害、甚至殺人等極端惡性事件，影響了社會(huì)的安定團(tuán)結(jié)，也影響了司法的公正與權(quán)威。 本文試圖通過筆者親歷的案件，來說明現(xiàn)在彩禮類糾紛的復(fù)雜性及嚴(yán)重性，從而引出對彩禮糾紛研究的必要性。彩禮從古至今一直存在，影響著人們的生活，在現(xiàn)今社會(huì)我們不可能禁止該習(xí)俗，就應(yīng)正視它存在的現(xiàn)實(shí)性、必要性，以及現(xiàn)今彩禮糾紛的特殊性，進(jìn)而研究及制定適宜的法律來規(guī)制它。 本文先從案例引出研究彩禮糾紛的必要性并查找分析了我國建國后與彩禮糾紛有關(guān)的相關(guān)立法；然后從歷史回顧來認(rèn)識彩禮的起源，通過比較法，將與彩禮有關(guān)的或者相近的概念進(jìn)行比較分析，了解各學(xué)說對彩禮的法律性質(zhì)分析，，并提出自己的觀點(diǎn)，使得彩禮的概念、性質(zhì)及界限得以明確；再次本文針對《婚姻法解釋（二）》的規(guī)定指出了其存在缺乏裁判原則、訴訟主體不明確、與我國習(xí)俗不相適用等諸多不足，并對上述所提出的不足之處提出了針對性的立法完善構(gòu)想；最后聯(lián)系審判實(shí)踐，筆者提出了處理彩禮糾紛時(shí)的司法裁判方式及以期可以為彩禮糾紛立法的完善貢獻(xiàn)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.
【學(xué)位授予單位】：華東政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2013
【分類號】：D923.9
本文編號：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.
【學(xué)位授予單位】：華東政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2013
【分類號】：D923.9
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