| The modernization of Chinese legal system, with the most obvious characteristics of transplanting of foreign laws, began at the last years of Qing Dynasty and ended in the period of Nangjing government of Republic China. To some extent, foreign laws are the symbols and representatives of modernization. It is the task for modernization of legal system to assimilate the advanced foreign laws maximally and carry forward its own tradition in the legal system reasonably and to combine them perfect and make them suitable to the local situation. The task is more arduous in the domain of marriage law that can mirror the legal tradition best. This task also started at the end of Qing Dynasty. Chapter â… regards the draft of marriage law issued at the end of Qing Dynasty as the prelude of the modernization of Chinese legal system. In order to take back the exterritoriality, the Qing Dynasty made a lot of laws with the purpose of "going smoothly at home and abroad". The law-making principles of considering the people's feelings, holding our own legal tradition and adopting new laws of other countries are based on the purpose mentioned above. "Considering the people's feelings "means that it is necessary to investigate customs and habits existing on our own land. "Adopting new laws of other countries" need translate the law origins. These preparing work laid a good foundation for legislation. However, the written draft of marriage law at the end of Qing Dynasty attaches more importance to keeping its own legal tradition and maintaining the power of the master of a family and the power of husband. As for foreign laws, it is just similar to their appearance but lost their essence. Chapter â…¡ researches and analyses several drafts of marriage law in the period of Republic of China. The text of a law is able to reflect the attitudes of lawmakers towards its own tradition and the advanced laws abroad completely. According to their nature, the drafts of marriage law during the period of Republic of China can be divided into two kinds. One is the draft in the period of the Northern Warlords, which was the successor of the draft of late Qing Dynasty and a product of conformism in legislation. The other is the legislation in the period of Nangjing government of Republic China. With the development of the social situation, the drafts make some fundamental changes and replies in some aspects, which is more similar to the advanced laws. This chapter bases on analysis of the characteristics of marriage law in the period of Nangjing government of Republic China. As an effective law, featuring advance, compromise and conservation, marriage law clearly reflects the attitudes of the lawmakers. Chapter â…¢ analyzes the administration of justice in marriage law through the methods of positivism during the period of the Northern Warlords. At that time, the law of late Qing Dynasty has to be applied for being lacking in legislation. Although the Order of Great President empowers the judicial organs some discretion, the Great Court, on the top of the judicial system, is a keeper of the stubborn traditional law, a protector of engagement and marriage based on status strictly, and a maintainer of concubine system and the power of husband in case of marriage or divorce. Only in particular case, did the Great Court make a precedent that marriage couldn't be forced, which has some prints of the modernization. Chapter â…£ analyzes the administration of justice in marriage law through the methods of positivism during the period of the Nanjing Government of Republic of China. The Supreme Court accomplishes the transformation from engagement to marriage contract through precedents. This transformation from "identity" to "contract" has great significance with modernization. Besides, the overthrows of precedents and the adjustments of judicial principles make the right of succession for women have no restriction any more. Yet, the practice of the Supreme Court and the provisions of marriage law still maintain the dominant rights of a husband in...
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