Marriage failed, can the dowry be refunded

Ren Shanshan from Henan Xianwei Law FirmThe era depicted in Muxin's"Once Slow"where"the sun used to slow down,cars,horses,and emails were all slow,and one's life was only enough to love one person"may have been far away.One's life may not only involve one person in marriage,but how should we deal with the awkward question of whether the dowry can be refunded when marriage fails?A dowry,also known as a dowry or a collection,is a gift with the purpose of concluding a marriage and conditions for termination.If the attached conditions for termination are met,that is,the purpose of marriage has not been achieved,both parties are prone to disputes over whether to return the dowry.Such disputes are legally classified as"contractual property disputes".At present,there is a common phenomenon of high dowry amounts,and there are more and more cases of disputes over the return of marital property,as can be seen from the following figure:本文从婚约财产纠纷法律关系的主体、客体和内容进行逐一阐述，并结合相关案例分析，以期更好地解答有关彩礼是否能退这一问题。一、关于诉讼主体具有婚约关系的双方当事人是当然的适格诉讼主体，那么如果给付彩礼的一方或者接受彩礼的一方是各自的父母，那么双方的父母可否作为适格的原告或被告呢？首先，我们需要明确，婚约财产纠纷因为涉及身份和财产双重属性，所以就给了具有婚约关系的以外的人加入诉讼的可能性。其次，按照权利义务相一致的原则来确定原告和被告。也就是谁给付或接受的彩礼，谁就能成为适格原告和被告。例如，许父用银行转账的方式，将彩礼转给白母，后因为种种原因，双方未缔结婚姻，那么许父和许某就可以作为原告，而白母和白某做为被告。***后，遵循“非男女本人不能单独做为原告或被告”的原则。不能出现给付彩礼父母为原告，接受彩礼父母为被告的组合，因为该类纠纷并不是单纯的财产纠纷。二、关于诉讼客体婚约财产纠纷法律关系的客体是彩礼。彩礼是属于附条件的赠与，并不同于恋爱期间的一般赠与，彩礼需要符合以下两个条件：一是以缔结婚姻为目的，二是符合民俗性。通常法院认为，应将法律规定与当地的风俗习惯相结合，找到法理与情理之间的平衡点，来判断彩礼的范围。例如，某些地区有“认亲钱”的风俗习惯，法院认为此种习俗所给付的财物不具有法律所规定的彩礼性质，应该视为双方当事人在订立婚约过程中，为增进双方情感，顺利缔结正式的婚姻关系，而做出的无偿赠与行为，不具有返还的性质。因此，并不是男女双方所有的财物往来均是彩礼，我们应该严格按照上述彩礼的性质来判断彩礼的范围。三、关于权利义务的内容婚约财产纠纷法律关系的权利义务内容可以概括为：给付彩礼方是否有权要求对方返还彩礼？以及返还的比例如何确定？根据大数据分析，法院支持原告，即给付彩礼方的诉请所占的比例较高：1、关于给付彩礼方是否有权要求对方返还彩礼的问题2017年***高人民法院出台了《***高人民法院关于适用<中华人民共和国婚姻法>若干问题解释（二）》的司法解释，该解释第十条规定：当事人请求返还按照习俗给付的彩礼的，如果查明属于以下情形，人民法院应当予以支持：（一）双方未办理结婚登记手续的；（二）双方办理结婚登记手续但确未共同生活的； （三）婚前给付并导致给付人生活困难的。 适用前款第（二）、（三）项的规定，应当以双方离婚为条件。根据上述法律中规定的三个条件，如果满足任一条件，原告即有权要求被告返还彩礼。案例一：柴某与程某于2017年6月3日按照农村习俗举行仪式同居生活，同居前柴某送程某彩礼108000元，双方未办理结婚登记。由于双方性格不合，现向人民法院请求判令程某归还全部彩礼。法院认为：双方在未办理结婚登记，一方请求返还按照习俗给付的彩礼的，人民法院应当支持。但是考虑到双方共同生活一年的因素，程某应酌情返还80000元。案例二：马某和祝某特地选择5月21日这个具有代表性的日子去办理结婚登记手续，但是其后种种原因，双方并未生活在一起。法院认为，双方虽然办理了结婚登记，但是并没有在一起生活的事实，所以符合《婚姻法解释二》第十条第二款的规定，祝某应返还马某所给付的彩礼。2、关于彩礼返还的比例问题经过对相关案例分析，法院在裁量返还比例时，一般会考虑两种因素：一是双方共同生活的期间长短；二是加大过错方责任的原则。正如上述案例一中所表明的，柴某和程某在共同生活不到一年，彩礼返还的比例为80%，而在另一个案例中，双方未办结婚登记的情况下，共同生活在两年以上的，一般返还的比例极低，甚至判决不予返还，这是考虑到一方面长期共同生活增加了缔结婚姻的可能性，表明达到给付彩礼的目的，另一方面，两人长期生活，也适应了一些地区对婚姻额传统理解，对应彩礼民俗性的特征。另外，法官行使自由裁量权时，也会考虑双方在婚姻中的过错，并适当的照顾女方和儿童等弱势群体的利益，综合裁定返还彩礼的比例。综上，当感情化为泡影，婚姻关系无果时，可视具体情况根据法律规定，请求全部或部分返还彩礼，运用法律手段维护自身合法权益。

Party Building | First, the law firm's party branch went to the Taiyue Red Culture Exhibition Hall to carry out party building activities

Party Day1921-2023102nd anniversary of the founding of the CPCIn order to welcome the arrival of the "July 1st" Party Day, continue to study and implement the spirit of the 20th National Congress of the Communist Party of China, and deepen the theme education activities of "being a good lawyer who satisfies the Party and the people", according to the requirements of the "Notice of the Luoyang Lawyer Industry Party Committee on Carrying out a Series of Activities to Celebrate the 102nd Anniversary of the Party's Founding on July 1st", on June 28, 2023, Song Heng, Deputy Secretary of the Party Branch of Henan Xianwei Law Firm, and Cao Mingzhe, Propaganda Commissioner, led some party members, lawyers, and active party members to the Taiyue Red Culture Exhibition Hall in Xin'an County to carry out party building activities.The Taiyue Red Culture Exhibition Hall is located in Gucun, Zhengcun Township, Xin'an County. As a microcosm of the Chinese revolution during the war era, Xin'an, a revolutionary old area in western Henan, has left behind a series of touching red memories. In 1927, the first party branch of the Communist Party of China in Xin'an was established. On the banks of the Yellow River, inside and outside the Han Pass, outstanding Xin'an children ignited the flames of revolutionary struggle, fought bravely, and ultimately won a comprehensive victory in the Anti Japanese War.Under the leadership of Comrade Song Heng, all party members and lawyers collectively solemnly took a solemn oath, revisiting the oath of joining the party and expressing their firm belief in loyalty to the party and serving the people. Everyone expressed that this event has made all party members and active party members feel the precious spiritual wealth left by our predecessors. It will always be the spiritual driving force that inspires us to overcome all difficulties and obstacles and strive for the great rejuvenation of the Chinese nation. Adhering to the leadership of the Party is the fundamental and lifeline of the Party and the country, as well as the interests and happiness of the people　　Seven/One/Building/Party/FestivalAfter the visit, all members took a group photo as a souvenir and shouted their firm determination to inherit the red gene and promote revolutionary traditions. In the future work, the first lawyer will consciously abide by and support the leadership of the CPC, practice the concept of people's lawyers for the people, never forget the original intention, remember the mission, earnestly perform social responsibilities, be a good lawyer satisfied by the party and the people, and contribute to the cause of the party.　Seven/One/Building/Party/Festival

Update | Lawyer Song Heng from our firm received a thank you from the client, Jinqi

Dynamic | Henan Lawyers Association Youth Work Committee Visits Our Institute for Research and Guidance

Henan Lawyers AssociationSymposium on the Practice Status and Career Development of Young LawyersHenan Xianwei Law FirmResearch SymposiumOn September 30,2022,the Youth Lawyer Working Committee of Henan Lawyers Association visited our firm to hold a research symposium on the practice status and career development of young lawyers in Henan Lawyers Association,with the theme of solving the difficulties and problems faced by the career development of young lawyers.Yang Jinghui from the Member Department of the Secretariat of the Henan Lawyers Association,Wei Jin,Deputy Director of the Youth Working Committee of the Henan Lawyers Association,Cao Zhenfeng(Vice President of the Municipal Lawyers Association),He Jing,Wei Li,Director of the Youth Working Committee of the Municipal Lawyers Association,Yan Ning,Supervisor Wei Wei,and Director of the Cultural and Construction Committee Bai Deying,as well as our partners Song Heng,Xiao Chun,and some young lawyers,attended this meeting.Research SymposiumFirstly,our partners Song Heng and Xiao Chun warmly welcomed the arrival of the research team of the Youth Working Committee of the Provincial Lawyers Association on behalf of the law firm,and led the research team to visit the office environment of our firm,introducing our development process and the work of cultivating young lawyers.At the symposium,the Youth Working Committee of the Provincial Lawyers Association had in-depth exchanges with young lawyers,and carefully answered,guided,and organized records of the confusion and questions raised by everyone.Song Heng and Xiao Chun provided an overview of the guarantees,management systems,training programs,and special activities that I have provided to support the growth and future development of young lawyers.They also pointed out that young lawyers are an important human resource for the future development of law firms.In the future,our firm will continue to devote itself to the training and development of young lawyers,innovate ways and methods to enhance their comprehensive qualities and professional abilities.We hope that the Provincial Law Association and the Municipal Law Association can jointly assist in building and improving a good platform suitable for the growth and development of young lawyers.Research SymposiumAt the end of the meeting,Cao Zhenfeng summarized his speech and pointed out that the growth and career development of young lawyers are one of the important long-term concerns of the legal industry.Young lawyers should establish correct values and professional views,continue to promote good work styles,strengthen learning and standardized practice,and make the development of the legal profession a long-term goal.At the same time,the growth and development of young lawyers cannot be separated from the assistance and training of lawyer associations and law firms.The three parties should actively play their roles and assist in the construction of the rule of law in our city.