Juridical argument
Party of marital both sides is signed about marrying of betrothal gifts " agreement " , conventional betrothal gifts puts forward to part company to credit side or divorce betrothal gifts does not grant to return, betrothal gifts is received just put forward to part company or divorce times doubler return return betrothal gifts, violate marriage law regulation and convention of public order fine, the betrothal gifts that the betrothal gifts when reason divorces asks to put forward to divorce to credit side is received just agree by bilateral agreement times doubler return the request that returns betrothal gifts to should not get supportive.
[details of a case]
May 2005, person of some as such-and-such as Feng classics introduces Fu Mou acquaintance love. On May 25, 2005, both sides is signed " agreement " , agreement " Feng is such-and-such make the RMB 20 thousand yuan assure give pay such-and-such and custodial, control, if husband and wife concerns in the future burst: 1. Some puts forward Fu Mou part company (divorce) wish to return Feng Mou some RMB 40 thousand yuan; 2. Feng is such-and-such put forward to part company (divorce) some a single cent or penny does not retreat Fu Mou. The mouth says to not have by, establish this especially according to be card... note: This agreement must be spouse concern establish (marriage certificate) hind ability become effective. " village of village of Feng such-and-such place appoint can be in this " agreement " upper cover chapter, additionally more than 10 attendant eyewitness sign. On June 8, 2005, pay some and some Feng Mou some register marry, parturient on April 23, 2006 Feng Xiao some. After marriage, both sides goes out together Wu labour, bilateral in September 2012 space labour of two ground Wu, and contact no longer, pay such-and-such Yi Wei to legitimate child Feng Xiao some uses up duty to rear. Small some of legitimate child Feng follows continuously Feng is such-and-such the life. On Feburary 6, 2016, feng Xiao some because bromatoxism hospitalization, generation medical treatment expends 25838.03 yuan, feng such-and-such view its are used 35 thousand yuan at paying Feng Xiao fee of some medical treatment to case alien loan. Fu Mou some sues a divorce to the court, ask to bring up legitimate child Feng Xiao directly some. And Feng Mou advocates Fu Mou some some pair times return return betrothal gifts, some medical treatment expends the Feng Xiao that compensates its to pay during live apart.
[judgment]
Chongqing city abundant prefectural people court thinks via cognizance, time of the understanding before bilateral marriage is shorter, emotional instability, feeling of husband and wife is complete already burst, together with both sides all agrees to divorce, reason makes do such-and-such the litigant request that puts forward a divorce, give support. To Feng Mou some puts forward to ask some returns Fu Mou return betrothal gifts 40 thousand yuan wait for a request, because both sides has concluded,marriage concerns and marry old, reason does not grant to support. Forensic court decision: One, allow pay some and some Feng Mou some divorce; ... ... 5, reject the others lawsuit that pays some some to request.
After first instance adjudicates, pay some and some Feng Mou some all refuse to obey, appeal reachs Chongqing city court of the 3rd intermediate people. Chongqing thinks after 3 quadrangle cognizance, betrothal gifts agreement violates the regulation of marriage law and convention of public order fine, the betrothal gifts that the betrothal gifts when reason divorces asks to put forward to divorce to credit side receives the agreement that just signs by both sides to agree times doubler return the appeal that returns betrothal gifts to request not to deserved to support. Reason court decision rejected Feng such-and-such requirement to return the appeal that returns betrothal gifts to request, other to first instance court decision unreasonable sentence had change the original sentence.
[review analyse]
One of controversy focuses of this case are whether betrothal gifts should be returned still.
1. case experience " agreement " should maintain 20 thousand yuan of the agreement for betrothal gifts. Above all, bilateral party all admits this in program of first instance, 2 careful " agreement " it is betrothal gifts 20 thousand yuan of the agreement, feng such-and-such view is returned return betrothal gifts, pay such-and-such view to explain according to judicatory the regulation should be not returned; Next, think normally, " top people court about applicable < marriage law of People's Republic of China > the explanation of a certain number of problems (2) " (the following abbreviation " marriage law explains 2 " ) the 10th in the betrothal gifts that involve, must be the custom habit that is based on place, give for what final form marries to marriage concerns and be pay, have apparent consuetudinary sex. Accordingly, the court returns the case that returns betrothal gifts to party appeal, ought to according to both sides or the actual condition that receive seat of debt one party, if existence gives Fu Caili to just can conclude,the custom that marriage concerns is used to, criterion money gives maintain like Fu Yi for betrothal gifts, otherwise can according to donative processing, and this case party seat has the habit that Fu Caili gives before marriage. So, case experience " agreement " should maintain 20 thousand yuan of the agreement for betrothal gifts.
Whether is 2. betrothal gifts returned return judicatory explanation to have specific provision. " marriage law explains 2 " the 10th regulation: "Party requests to return still according to consuetudinary give paid betrothal gifts, if find out,attribute the following situation, people court ought to give support: (one) both sides was not dealt with marry of the formalities that register; (2) both sides is dealt with marry the formalities that register but did not live jointly truly; (3) give before marriage pay and bring about those who pay a person to be badly off. Applicable before paragraph (2) , (3) regulation, ought to be a condition with bilateral divorce. " this case Feng is such-and-such after to Fu Mou some pays betrothal gifts, both sides dealt with marriage to register formalities, live jointly and bear one child, its oneself give to Fu Caili before Feng such-and-such Yi Wei offers evidential proof marriage or parents is caused be badly off. So, according to this regulation, feng gives paid this betrothal gifts before some some marriage should not return still.
3. deposit punishs the agreement that the concerned identity such as not applicable marriage concerns. Deposit is to assure of the debt that law, contract law provides assure means, deposit is punished have specific suitable scope, establish between the natural person that applies to equal principal part, legal person, other organization, the change, agreement that terminates civil rights obligation to concern. This agreement is the agreement that belongings quality has in market economy come-and-go, repellent identity concerns. So, this case party request sets according to law times doubler return return betrothal gifts to be not had at the law according to.
4. " agreement " about times doubler return the agreement that returns betrothal gifts to disable. Marriage law establish the basic principle of marital freedom, marital freedom includes to marry the respect such as free, divorce freedom. This case limitted the marital freedom that pays some some through the form of consultative deposit, violated the basic principle of marriage law. In the meantime, divorce pair of times Gong Xuliang common that returned the agreement that returns deposit to still disobey civilly principle. Be based on above at 2 o'clock, in this agreement about times doubler return the agreement that returns deposit to disable. Of course, of this agreement invalid cannot reach Fu Caili's behavior disables, accord with civil habit to Fu Caili, and do not prohibit for legal place. So, betrothal gifts is to Fu Hang should effective, satisfying " marriage law explains 2 " of the 10th regulation return the case that returns a condition to fall, pay some some not only need not times doubler return still, and need not return return 20 thousand yuan when pay. " agreement " go up village appoint meeting affix one's seal and more than 10 behavior that attendant eyewitness signs, can prove some gives Feng Mou only paid betrothal gifts and amount, it is OK to will can not explain with this Feng is such-and-such requirement times doubler return return betrothal gifts.
Be based on above consideration, 2 careful adjudicate this case such-and-such to Feng requirement times doubler return the request that returns betrothal gifts not to grant to support.
This record record date: (2017) change 0230 civilian first 5250, (2018) change 03 civilian eventually 437
Case writes a person: The 3rd intermediate people of Chongqing city forensic Zhang Jingwei
