解读婚约:现象、性质及立法

Interpretation of the Engagement: the Phenomena, the Nature and the Legislations

我国1950年、1980年和2001年《婚姻法》均无关于婚约的规定,相关司法解释零散而不成体系。以社会调研为基础,考察婚约的涵义及历史流变,可知作为男女双方意思表示的现代婚约,性质上属于亲属法上的契约,兼具亲属法与债法的双重属性。婚约现象长存不衰,有着深刻的心理、文化和经济基础,我国现行立法对婚约习俗的规避与漠视有"矫枉过正"之嫌。婚约立法是填补法律漏洞、充分发挥法律社会导向功能之必需。我国应当对传统婚约习俗采取"形式保留、内容改良"的态度,构建一个理论上符合现代法律自由精神,实践中满足司法实务需要的婚约制度。

There are no provisions of the engagement in the marriage law of 1950, 1980 or 2001, mo- reover, the relevant judicial interpretations are fragmented without a complete system. Based on sever- al social researches and a study of the engagement＇ s meaning and historical evolution, we can see that the modem engagement with the declaration of both men and women is a contract of the family law in nature, which also holds attributes of the debt law. With profound psychological, cultural and eco- nomical foundations, the engagement phenomena have kept alive for a long period of time. While, the current legislations of this marriage custom is still blank, and the overlook attitude seems to be over- kill. Therefore, the legislations of the engagement are necessary for filling loopholes in the marriage law and giving full play to the social guiding function of it. China should take an attitude that ＂reserve its forms, but improve its contents＂ to the traditional engagement customs, in order to build a reason- able engagement system which can not only accord with the free spirit of modem laws theoretically but also meet the needs of judicial practices