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What are the ＂Six Rites＂？ What are the conditions for returning the dowry？
Time:2025-09-01 Views:1358
During the engagement period, mutual gifts can be divided into two types. One is ordinary gifts for daily interactions, such as giving flowers, clothes, etc; Another type is commonly known as "dowry". For gifts in daily communication, they belong to gift contracts, and once they have been fulfilled, ownership has been transferred. Whether to reach a separate contract for return depends entirely on the mutual agreement of both parties. If the agreement cannot be reached, there is naturally no need to return.
As for the nature of "dowries", it is not that simple. Civil law focuses on civil customs, and the custom of giving "dowries" has been around for too long. In history, dowries were actually the legal form of marriage. Let me first talk about the custom of dowries in history here, and then please take a look at my previous short article "The Punishment of dowries in Marriage Failure", which may be helpful for your thinking.
What are the "Six Rites"
The dowry is one of the "six rituals" of ancient marriage, which can be divided into six major procedures: "accepting gifts", "asking for names", "offering gifts", "offering gifts", "offering gifts", and "welcoming relatives". Here are some introductions:
This "Six Rites" was called "Six Rites" before the Southern Song Dynasty, and it was a relatively standardized and influential procedure.
Na Cai. It means that parents invite someone to express their intentions to the female parent. This depends on the "order of parents". Firstly, if the parents of the male party are interested in the female party, they usually need to have a relative relationship and send a matchmaker to the female party's house to propose marriage, clearly stating that they want to find a partner for their child, who is from the other party's family. This is called accepting. There is a plot here that is not mentioned in many legal history books. Usually, you need to bring a wild goose with you because the wild goose is a "token" that values reputation, not a joke. Regardless of whether the woman agrees or not, this wild goose is given away for free and cannot be retrieved. If the woman says no, end it. If possible, enter the second program.
Ask the name. After receiving the information from the matchmaker, the parents of the groom send a matchmaker to inquire about the bride's name, zodiac sign, date of birth, and other specific details. This is a technical procedure.
Najib. After clarifying everything, go to the fortune teller's place to calculate. If the fortune teller says it's not good, then forget it. If it's good, move on to the fourth step.
Collecting. This is the most important thing, giving away the dowry. Once the woman receives it, the marriage has actually been established. Some books say that it is better to hire more or less wealth, but Tang Dynasty regulations stipulate that it is okay to hire more or less wealth, and that food and drink are not counted, usually silk and satin. So why is it considered established once received? It depends on the law. Tang Dynasty law clearly states that if the dowry is sent to the woman's family and the man regrets the marriage and refuses to sit down, he will not be held criminally responsible. However, if the dowry is not demanded, it will be given for nothing. But if the woman repents of her marriage, the parents will be punished with a cane of sixty, which constitutes a crime. Therefore, it can be seen from this that we believe accepting the offer of wealth means the establishment of a marriage, so in this sense, this marriage is a buying and selling marriage. This program has the same legal effect as the marriage certificate program. We say that ancient marriages were arranged marriages or marriages of buying and selling, which is not bad. The people who wrote scripts in ancient China understood this law, such as Liang Shanbo and Zhu Yingtai. Zhu Yingtai was originally supposed to marry Liang Shanbo, but when she returned home and saw that the family had already received the betrothal gift, she had no choice but to cry to Liang Shanbo. She did not want her father to commit a crime because of her repentance for marriage, but also did not want to marry Ma Wencai's son. Therefore, she first got on the sedan chair and then ran to Liang Shanbo's grave to die, which was neither illegal nor married.
Please wait. The man sends an envoy to negotiate a date with the woman's family, usually through fortune telling. Later on, it was simply printed on the calendar, indicating what was appropriate and what was not.
Welcome personally. The groom followed his father's orders and went to the bride's house to marry her.
In the Southern Song Dynasty, the program was simplified, and the six rituals were simply simplified into three rituals: accepting, accepting, and welcoming. Some books simply write 'collecting taxes' as' collecting coins', which is even more blatant. This Three Rites will continue until the beginning of this century. In the Ming and Qing dynasties, new regulations were also made. On the day of their wedding, the groom can go to the government office to borrow an eighth or ninth rank official dress to wear, which is the kind of bright red one. This is the origin of people often referring to the groom as the "groom's official" nowadays.
Alright, the historical story is over. Let's summarize that modern dowries are actually evolved from the ancient "Na Zheng" (also known as "Na Bi" after the Southern Song Dynasty). Of course, some places divide the dowry into two parts (such as the old custom in my hometown), called "Xiaoding" and "Dading" respectively. I believe that "Xiaoding" corresponds to the ancient concept of "accepting", and "Dading" corresponds to the ancient concept of "accepting".
In summary, if it is a dowry, the purpose of the gift is quite clear, which is to achieve marriage. From the perspective of gift giving, this is a conditional gift.
Disposal of dowry in case of failed marriage
Since ancient times, in China, there has been a custom of the groom giving a certain amount of dowry or betrothal gifts to the bride when the initial marriage agreement is reached. This dowry or betrothal gift is commonly known as "dowries". This custom originated from the "Six Rites" marriage system established in the Western Zhou Dynasty and inherited by various dynasties. Over the long course of history, it was recognized by various dynasties as a legal requirement for marriage. The "Six Rites" are as follows: accepting gifts, asking for names, offering blessings, offering invitations, and welcoming relatives. The current dowry is equivalent to the collection of ancient rituals. This form of marriage continued until the Republic of China, but in the 1934 Soviet Union Marriage Law of the Chinese Soviet Republic, it was clearly stipulated that the formal requirements for marriage were: "Men and women must register and obtain a marriage certificate at the township Soviet or 'urban' Soviet together. The abolition of dowries, dowries, and dowries is aimed at ensuring the true implementation of the principle of freedom of marriage. However, this provision has been abolished in the current Marriage Law of our country. In fact, the vast majority of current forms of marriage still have dowries and dowries to some extent in practice, especially in rural areas. So once the dowry is given, if for some reason the marriage cannot be concluded, the issue of handling the dowry often leads to disputes, and many people resort to the court. In these cases, there are cases where the man requests the woman to return the dowry but the woman refuses to do so, and there are cases where the woman requests the return of the dowry but the man refuses to accept it.
To address these issues, it is necessary to first explore the nature of dowries.
Modern marriage is no longer about buying and selling, and dowries cannot be considered as value. In the process of giving and receiving dowries, the man's payment of dowries is free of charge, and the woman's acceptance behavior is also the same, without the need to pay consideration. Therefore, it can be considered that this payment behavior is actually a gift contract. However, this type of gift contract is not as clear as a simple gift, as both parties' intentions are actually based on the expected outcome of marriage, and often both parties have a clear indication of this expected outcome. So it is worth studying how such expectations will affect the effectiveness of dowry gifts. From a legislative perspective, there is no provision in Chinese law regarding the nature of dowries. From the perspective of judicial interpretation, there is no provision in the judicial interpretation of the Supreme People's Court of China. In terms of academic theory, some scholars in mainland China have proposed that "for property disputes arising from the termination of a marriage contract, they should be handled properly according to the situation... In principle, it seems appropriate not to return it; if the value is high, the donor requests the recipient to return it... if necessary, it can be returned at the discretion of the recipient". However, this theory has not been analyzed from the nature of the dowry, and only opinions have been put forward without analysis. The handling opinions are also ambiguous, so it lacks persuasiveness. Therefore, theoretical analysis becomes even more necessary and urgent.
The analysis of this issue mainly involves whether the fact of marriage in such gifts is subject to conditions, obligations, or other factors?
Article 190 of China's Contract Law stipulates the concept of "gift with obligation attached", also known as "gift with burden attached" in theory: "Gifts can be accompanied by obligations. If the gift is accompanied by obligations, the recipient should fulfill the obligations according to the agreement." However, for gifts with obligation attached, the completion or non completion of the obligations does not affect the legal act of gift, which is different from the relationship between conditional legal acts and conditions, and the obligation attached creates the effect of debt. Therefore, for gifts with obligations attached, if the recipient fails to fulfill the obligations attached, according to the above provisions of the law, it is considered a breach of contract. The donor may have the right to demand performance, or may sue the court to enforce performance in accordance with the law, or may revoke the gift in accordance with Article 192 (3). However, marriage is a personal relationship that cannot be enforced, so it is obviously inappropriate to consider the nature of dowries as gifts with obligations attached. Mr. Wang Zejian also believes that "the legal nature of marriage cannot be considered as a payment act and cannot be forcibly requested to be performed. Therefore, it seems doubtful whether using marriage as a gift burden is in line with the will of the parties and the general social concept
Therefore, the common belief in civil law countries is that dowries are conditional gifts. Conditional legal acts can be divided into two categories: those with conditions for effectiveness and those with conditions for termination. The distinction between the two is also crucial for the disposal of dowries. If it is a gift that meets the conditions for effectiveness, the gift will only take effect at the time of marriage, and the ownership of the dowries will still be in the hands of the man. If it is considered a gift with conditions for termination, it will take effect once an agreement is reached on the gift, and the ownership of the dowries will be transferred to the woman once it is delivered. However, when the marriage fails, the gift contract will be terminated. If the special agreement between the parties regarding the dowry is not taken into account, generally speaking, it should be considered that the donor has fulfilled the debt arising from the gift contract by delivering the dowry to the recipient, and the original intention of the parties is clearly to make the gift effective. In real life, after receiving the dowry, the female party often uses it in practice by purchasing a dowry or other means, which is also a sign of the transfer of ownership by the parties through delivery. In fact, in countries with regulations on dowries, it is generally accepted in academic or legislative terms that such gifts are subject to termination conditions. Only a few precedents and academic theories believe that it is subject to effective conditions or similar contractual deposits (mainly the old Japanese doctrine). The civil laws of Germany and Switzerland both explicitly stipulate this kind of gift, and from their provisions, it is required that in the event of a failed marriage, the gift can be requested to be returned. Mr. Shi Shangkuan believes that it should be a gift with termination conditions attached.
Since the nature of dowries is classified as gifts with termination conditions, we can apply the theory of civil acts with termination conditions in civil law and the specific provisions of contracts with termination conditions to explain the handling of such debts in the event of marital failure. There are mainly four situations: firstly, the marriage cannot be completed due to reasons attributable to one party; Secondly, objective reasons that cannot be attributed to one party of the marriage prevent it from happening; Thirdly, both parties agree to terminate the marriage contract; The fourth is the death of one party involved. According to the theory of conditional civil acts and Article 45 of China's Contract Law, "if a party unreasonably prevents the fulfillment of a condition for their own benefit, it shall be deemed that the condition has been fulfilled; if they unreasonably facilitate the fulfillment of a condition, it shall be deemed that the condition has not been fulfilled." We can analyze these three situations. When objective reasons that cannot be attributed to one party result in the failure of the marriage (such as physiological or legal reasons that prevent the marriage from happening), or when both parties agree to terminate the engagement, the termination conditions are naturally fulfilled, the gift contract is terminated, and the gift obligation should be returned. If the death of the party concerned is fully understood according to the conditional gift contract, it can generally be considered as a reason for the termination of the gift contract and the need to return the property. If the property has been actually used, it can be considered to be returned within the scope of the party's estate. However, foreign countries (such as Germany and Switzerland) have regulations that do not require return in this situation, which is also reasonable because the death of the recipient after the gift takes effect does not constitute a reason for the termination of the gift contract. When the failure of a marriage is due to reasons attributable to one party, it becomes more complex. Because the Contract Law of our country only stipulates the situation where the parties prevent or facilitate the fulfillment of conditions for their own interests, but the attributable reasons that lead to the failure of marriage may not necessarily have this purpose, and such reasons may lead to the other party having to initiate the termination of the marriage contract. For example, if the donor causes the other party to terminate the contract through their own dishonorable behavior, according to the Swiss Marriage Law of 1915, the donor cannot request a return. However, in the current laws of our country, there is no basis for such disposal, because when the perpetrator engages in such "dishonorable behavior", most of them do not intend to prevent the marriage from ending, but often only hope that it will not be discovered. In this way, in our country, it can only be considered that the conditions for termination have been met, and the gift should be returned. However, our country does not consider this situation as a situation where the non fault party can request compensation for damages, so I believe that the protection for the non fault party is insufficient.
The above is mainly an analysis of the nature and handling of dowries in the event of unsuccessful marriage, which is not regulated by current laws in China, based on some theories of the civil law system. But when this kind of debt is entangled with the personal right of marriage, perhaps local history and customs become more important, especially when there is no explicit provision for this in statutory law. The provisions of ancient Chinese law regarding the civil liability of such gifts in the event of unsuccessful marriage are: "(1) When a man regrets his marriage and remarries, he shall not pursue the gift of wealth. Of course, the old laws in our country also included provisions on criminal responsibility, reflecting the characteristic of "no distinction between civil and criminal". These local civil customs, in addition to involving personal and criminal liability, should be said to have considerable reasonable elements, especially the provision that the party who regrets marriage shall not benefit, which is consistent with the provisions of modern civil law systems. Therefore, this custom should also be considered as law.
In short, the debt of dowries is highly specific due to its close relationship with marriage. Neither the Contract Law nor the Marriage Law in China have specific regulations on this, leading to extreme confusion in practice. Sometimes, cases are handled solely based on the personal understanding or likes and dislikes of judges, which is inappropriate. Therefore, it should be considered as a special conditional contract to be stipulated in the Debt Law, and the nature and protection of the engagement should be stipulated in the Marriage Law to complement and coordinate. In the legislative process, not only should mature theories from abroad be referred to, but China's local civil customs should also be respected, and the reasonable elements should be absorbed into the law. Based on this viewpoint, this article believes that for the debt of dowries in the event of a failed marriage, the principle of return should be considered in legislation, and non return should be taken as an exception. Attention should be paid to protecting the interests of the innocent party, because the failure of marriage itself can cause damage and harm to the innocent party, not only in terms of time, energy, and property, but more importantly, it may also cause significant mental harm. However, Chinese law cannot claim compensation for breach of contract or tort liability for damages, so different treatments of dowries can also slightly compensate for the legislative shortcomings in this regard. As for the death of one party, there is no need to adhere to the theory of fulfilling the conditions to terminate the contract. It can be used as a special case, referring to ancient Chinese legislation and foreign legislation, and it is appropriate not to return.
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