| Marriage and family relationship are regulated by family law, among which, therelationship and the footing between man and wife are very important things in the study offamily law. China has revised and publicized 3 Marriage Laws since 1950s in differentstages for the purpose of promoting and building sound and harmonious family system. It isvery clear what the law struggles, but there are still some problems in the amphotericpattern, which still infect people's life, e.g. the traditional pattern of labor division infamilies, the increasing tendency of family violence, the increasing conflicts on thechildbearing right between man and wife, the always high divorce rate, the very high ratefor women asking for divorce, more and more one-parent families and remarried families,the appearing and fortifying of the poverty of females after divorce and children they bringup, the weaker side not being well protected by the community of family property in theexisting divorce procedure, the not-well implementation of the divorce compensationsystem in practice. These problems caused a lot of conflicts in practice, which are paidgreat attention by the state. The author believed that these problems were the reflection ofsocial conflicts in certain stages, which were greatly related with some traditional conceptin Chinese past family law making. It is necessary for us to go further to view and analyzethe legislation thinking approach in the past family laws and policies made by manyhistorical reasons. Other crucial research view and approach should be absorbed to explorethe defects of existing systems deeply; therefore the family system could be furtherdeveloped to be more perfect. The feminist research approach and view is what the authorput emphasis and try to learn from.Feminism is an important movement and trend of thought formed in western societysince the end of 19th century. Its tenet is to change the social sexual discrimination andunbalance formed in the historical cultural development, to eliminate the hang-on positionof the females to males in the society and in the family; therefore it promotes theindependency of females. In its more than one hundred years' development, feminismbecame an important research approach in the west, which proposed many important studycategories and concepts by its unique study view, and brought direct influence on themaking of legal systems in western society and international convention. Feminist'sexperience of paying more attention to the weaker parties who were always neglected bythe society, the thinking pattern and research approach of revising and questioning the dominant traditional law and culture thoroughly has become the unavoidable importantissue in world culture in 20th century. Chinese law and culture began its touching, analyzingand knowing of feminist in middle 1999s. Till now, many of its important study categorieshave been widely learned from in many social studies, including law science. Nevertheless,together with other problems, it was not fully understood by family law school, which leftmany misunderstanding in Chinese legal community; therefore this condition apparentlydoes not do good to the development of Chinese family law science and the construction ofharmonious family system. It is necessary for Chinese law to pay further attention to thisimportant field. Based on this, the author began its study from the reform of western familylaw system, reviewing the feminist theoretical research on family law field. Based on this,the author further analyzed the feminist study view and approach, and in the end put it onChinese practice to look back, investigate and meditate the development of Chinese familylaws and policies. Feminist research as an educational approach is applied to analyzerelated important systems in Chinese existing family laws in the hope of donating herefforts in the perfection of Chinese family law.There are 5 chapters in this thesis besides introduction, about 280,000 words.Introduction proposed the researching purpose, and its theoretical and practicalsignificance as well as the present research and study approach. The author discussed thefollowing issues as a whole:What is feminism? What kind of conditions are our family system and legalconstructions at? Why the author proposed to put the study of family law and feministapproach? The author discussed the theoretical and practical significance, the presentresearch conditions and the research approaches as well.Chapterâ… mainly focused on great changes in western family law and feminist inmodern society. The author treated the end of 19th century as a time dividing point toobserve the evolvement of western family law. Before 19th century, females in most timeswere in a hanging-up position in the family, family law at that time played a role of forming,reflecting, maintaining and promoting the formation of this position. After the end of 19thcentury, there appeared great changes in westem family laws, mainly reflected by familyforms, family property system, family person system, divorce system. Changes in thefamily legal systems are the outcome of many factors as a whole, among which, feministplayed very significant roles.Chapterâ…¡was titled with "the observation and analysis on feminist theory". Feminist paid persistent attention to family field. The author selected five issues as the objects in western family law to be analyzed, i.e. housework, the female's child-bearing right, family violence and inner-marriage outrage, feminized poverty as well as some issues in the legal procedure, which are greatly influenced by feminist. These issues were neglected by western traditional law and culture, which received social emphasis for the first time by the feminist research and gradually promoted the reforms of western legal systems and the attention paid by international convention to many issues in family field. This chapter fully investigated, observed, reviewed and analyzed the theory in the hope of understanding the complicated feminist theory thoroughly and fully.Chapterâ…¢was focused on "the observation and analysis on feminist approach" . It further upgraded and outlined feminist theory based on chapterâ…¡. Feminist theory entered many fields since its being, and it enlarged its criticism and capacity in theory in its development, which made feminist very complicated. However the specific content it has, it is invariable for feminist to discuss issues from female perspective; therefore a series of researching approach came into being, which brought great influence on western legal research. This chapter observed and analyzed these approaches and analyzed the important revelation these approaches left to legal research and family law research in China.Chapterâ…£was titled with "observation and review on the historical evolution of Chinese family law from the feminist perspective" . It observed the evolution of Chinese family law from the feminist perspective. This chapter divided different research stages by the beginning of 20th century. Two basic purposes in this chapter are to be achieved. First the evolvement of Chinese family law from the feudal society to the year of 2001 is to be thoroughly investigated, among which the family legislation at the end of Ming dynasty and in the beginning of Qing dynasty, the family legislation in Republic of China as well as in the citadel led by CPC. The author thought only after this systematic investigation we could arrive at correct conclusion. The second purpose was to observe Chinese family law and policy since 1949 from the feminist perspective. The author proposed, though the quality between man and woman is held by marriage law and policy after liberation, for the lack of thorough consideration and criticism on traditional male chauvinism and social concept, many important issues such as housework liability, family violence are not paid attention and controlled in family legislation. The author put feminized housework as an example to consider Chinese family law and policy after liberation.Chapterâ…¤focused on "the feminist analysis on current Chinese family law. It is the most important part, feminist view and approach is applied here to analyze important systems in Chinese existing family law. The author combined feminist theory and approach, selecting housework, family violence, man and wife property system, divorce compensation, female right to decide whether to bear a child as the objects to be studied and analyzed from different angles, directions and layers, which influenced Chinese family system greatly. Points are the following:First, concerning housework, the author analyzed the present conditions of housework sharing in Chinese society and various influences on family relationship by this labor from the feminist perspective, looked back and considered the legislation and policy concerning housework, then analyzed the existing regulation, and proposed her legal advice. Concerning this, the author first proposed the concept of "housework liability", holding that at this stage family law should add an article to advocate "man and wife should do housework together" to change the traditional social sexual concept concerning labor sharing.Second, concerning family violence, the author analyzed the present conditions of family violence, looked back the past policy, and reasoned the importance of paying attention to present family violence from the feminist perspective. Based on this, the author proposed related legal advice to improve Chinese anti-family violence law. In this part, the author proposed the following advice to deal with present defects: 1. family violence should include banning sexual violence in a family; 2. it should be prescribed that the victim has the independent right to ask for compensation whether divorce or not; 3. the legislation should strengthen the prevention of family violence; 4. in practice the key measure is to be put on the act of abuser, reducing and even avoiding the treatment on the victim's wrong deed.Third, concerning man and wife property system, the author carried out social sexual analysis on the issues of legal community, promised property system and property division in divorce agreement. 1. It is a reasonable choice to carry out legal community concerning family property under the present condition. This system strengthened the protection of the party who do housework, while potentially strengthened the unreasonable labor division at the same time. Marriage law should reflect the value of housework in its system, and the concept that the community is not for the man and wife identity but for the co-efforts man and wife share is to be established. Concerning specific system, the author suggests that Chinese community property system should be improved. First, the system of compensation for housework should be kept under agreed property system between man and wife. Second, Concerning problems in the legal (or agreed) community property system, it was suggested that the following parts should be included in Chinese family law:â‘ The division of common property should be negotiated by the two parties at the time of divorce, when it does not work, the court should make the verdict in accordance with the principle of caring the weaker party and favoring the party who played more contributions to the family. The contribution to the family should be determined by the money paid, the caring of children and the doing of housework. The identification of the weaker party is based on his (her) education, the opportunity to be educated, job, income and the body conditions;â‘¡If one party supported the other party's cause or education, or cared the family by one's income, which exceeded his(her) obligation greatly, or one party did housework, cared children or helped the other party's career or business, which exceeded the deserved obligation, this party is entitled to ask for reasonable compensation, the other party should pay the compensation. This compensation should not affect the application of other articles when divorce. At the same time, the compensation applied to all property system.2. Concerning the agreed property system, the author pointed out, any agreement or contract could not be judged as other market contract by the effective part concerning the effectiveness of civil legal act simply, social sexual concept should be applied to protect the weaker party's benefits in legislation and legal practice. If the agreement appeared conflicts, the law should promise the basic justice of the contract in accordance with the specific conditions of the two parties. The author suggested that article 19 in marriage law should be revised as "the two parties agreement on the property gained at the duration of the marriage or before marriage being binding to the two parties, except that the agreement violated justice." If there was different idea on before agreed, the court would made the verdict in accordance with the specific things of the two parties and the principle of protecting the weaker party or the party who made greater contributions to the family. At the same time, this kind of marriage contract should be reviewed in legal practice. In addition, the legislation concept should be applied to other family contract gradually.The next part is concerning divorce compensation.1. The author believed that the system is not consistent with the developing tendency of unblamable divorce. And there are many difficulties in practice, therefore the author suggested that it should be abolished, and replaced by other divorce compensation systems such as divorce economic help and divorce compensation system; 2. the author believed that it is necessary to review the blamable divorce in Chinese marriage legislation, to change the concept of combing the divorce property division and fault together. And the legal term of "caring the non-blamable party" should be changed by "caring the weaker party". In addition, the application to divorce economic help and economic compensation should not be connected with the parties' fault. 3. The marriage law should improve related after-divorce system to avoid the possibility of appearing the declining of the weaker party's living standard or living in poverty caused by divorce.The last part is about the female right to determine child-bearing. Chinese law should make clear that both man and wife should have the right to determine child-bearing, but the same right should bear different content for different subject. Man and wife should agree to make their right to determine child-bearing within the state law permission. If the two parties could not reach an agreement, the right goes to the female.
|
PDF Full Text Request