Gift Exchange in China: Analyzed as Socio-Legal Phenomena

Gift Exchange in China: Analyzed as Socio-Legal Phenomena

(A full version of this article will be published by an international journal “Communitania”)

 

Xingan Li

 

Gift exchange is a human activity existing in different temporal and different spatial dimensions. Gift can be studied from different disciplines. In his book “The Gift” published in 1923, Marcel Mauss, “Emile Durkheim’s nephew and most distinguished pupil” (Evans-Pritchard 1966, p. v), claimed that there are three obligations in gift exchange: the obligation to give, the obligation to receive, and the obligation to return or repay (Mauss 1966).

In Chinese society, all these obligations existed and continue to exist. Traditionally, “li shang wang lai” (reciprocity) meant more than gift exchange, but in gift exchange, it meant at least the same as the obligation to give, the obligation to receive, and the obligation to return. However, under such a cultural circumstance, “exchange” is not always the case, but “giving” is more frequently the occurring.

It is more than complicated to reveal the reality of gift giving in Chinese society.

Among relatives of same generation and similar age, friends of similar age, and colleagues of similar rank and age, gift exchange means just the “exchange”, a bilateral process. Let alone gift giving during some festivals, giving valuable gifts is normal practice at occasions of friends’, colleagues or relatives’ wedding, birthday, congratulatory gift for being admitted to university, high school, etc. Mostly, it is an issue of moral. Gift in case of wedding is not only a moral issue, but also a legal one. Ordinarily, those who give will also receive; vice versa. Breaching such potential rules is a very dangerous practice. Those who receive but not give will be regarded as stingy and will lose good relationship, good reputation and thus good opportunities (sometimes with regard to job or promotion) among people of the same group.

In social dimension, the direction of gift giving heavily depends on seniority in the family. Usually, unilateral gift giving occurs from elder generation to younger generation, who is in the condition before employment or marriage; or unilaterally from younger generation, who is in the condition after employment or marriage, to elder generation, etc. So is the case of “red envelope”, which is presented by an elder relative to underage relative particularly during Spring Festival, celebrated as China’s New Year. Generally, receiving a red envelope when paying a New Year’s call to the elder relative by the younger generation during the first Spring Festival directly following the marriage marks the end of such unilateral gift giving from elder generation to the younger generation. And the next Spring Festival will witness the unilateral gift giving from the married younger generation to the elder generation. We can safely say that gift giving in this string of social network is tightly connected and strongly maintained by, relatives among, say, five live generations (grandparents, parents, self and spouse, children, and grandchildren).

Unilateral gift giving more frequently takes place depending on social status of presenter and presentee, for example, form student (or student’s parents) to teacher, employee to employer, and ordinary official to leading official. It means that inferiors have to give gift to their direct superiors at many and different occasions, including Spring Festival and other festivals, and other occasions where Chinese people habitually receive gifts from others, including weddings and superiors’ relatives’ burials. It is critical for an inferior to follow such rules in each and every occasion to give gifts to the superior. It is “awful” for an inferior not to give gifts to a superior, which will leads to “chuan xiao xie”, making things very difficult for the inferior to deal with in the future. Such a person can also be labeled as “si nao jin”, stubborn and bullheaded, and will not be “zhong yong”, i.e. put in an important position, ignored in salary increase or promotion. Such potential rules does not necessarily impose the obligation of gift giving, yet majority of the classmates and colleagues will voluntarily give and laugh at those who do not (like Stockholm Syndrome).

Special gift giving also take place when the presenter has special demand from the presentee. When looking for a job or lobbying for a promotion, expensive gift of property, money etc. to those who hold official power. In case of power-money dealt, legal issue emerges.

Concerning legal dimension, two issues should be considered:

One issue is how to divide property received as a gift before and during the marriage when divorce: what will be common property and divided between two parties and what will be one party’s property without division upon divorce? Consensus on several situations has now reached. Gift received by one party before or during marriage will still be property of that party, no division is necessary upon divorce. Gift received clearly stated as given to both parties before or during marriage will be property of both parties, division is necessary upon divorce. Housing bought by a party’s parents before marriage still belongs to this party. Only if it was explicitly expressed as giving to both parties, the housing should be divided between two parties.

In fact, historically, there was rarely the case where gift given by close relatives of one party of the marriage to the new family was not clearly stated as given to one party. Due to very low divorce rate, it would be very strange for a presenter to clearly assign the gift to only one party of the marriage. Particularly, when there were only gifts of small value and lifespan of a marriage was lengthy, it did not make sense to specify one and the only presentee from between the couple of the new marriage.

However, with rising of divorce rate and shortening of marriage duration, valuable gifts are more and more assigned to one party in order to prevent property from being obtained by the other party of the marriage. Such specification and assignation will be certified through notary offices. Yet, more and more disputes emerge when the divorcing parties cannot reach agreement on division of property received as gifts before and during marriage. In such cases, they have to seek court judgment. One party of the couple with closest connection with the presenter may claim sole ownership of the valuable gifts, supported by legal evidences against any share of the other party.

Another issue is more sophisticated: when receiving money and assets as gifts constitutes bribery? There is hardly a distinction between offence of bribery and gift when the presenter is in need of help from the presentee who is in power. Generally, many different factors can contribute to identification of bribery, for example, closeness of relationship between presenter and presentee, subjective motivation for gift giving, temporal distance between gift giving and power exercising, and value of gift. In appearance, it seems to be easy to distinguish bribery from gift giving. However, bribery as an offence is always concealed with sophisticated deliberate camouflage of gift giving. That’s why more and more legal rules on both substantive law and procedural matters have been implemented for incrimination of bribers.

 

Mauss, M. 1966. The Gift. London: Cohen & West.

Evans-Pritchard, E. E. 1966. Introduction. In Marcel Mauss. 1966. The Gift. London: Cohen & West. pp. v-x.

[1] This essay is based on a presentation delivered in a seminar held by International Institute for Information Society, Helsinki, Finland, on 20 February, 2017.