The Changes Of Family Break-up Law: Relation Between Society And Law In The History Of China

This paper mainly focus on the changes of family break-up law from the relationship between law and society in the history of China.Shang Yang began to set up the law of family break-up and make nuclear family common in the Qin dynasty. This law continued in the early Han dynasty and can be verified by the documents newly found in the tombs of Zhangjiashan. From emperor Hanwudi Confucian thoughts gradually became the ruling ideology and influenced the law. So the family break-up law had to change its contents so as to cope with the spirit of Confucianism. In Three Kingdoms era and after that until the middle time of the Northern and southern dynasties the law of family break-up was banned. In the Tang dynasty this legal items changed a little. Grandfather and father can break up but they had to remain in a bigger family and sons or grandsons had to live with their father and grandfather. From Wei Jin until North Wei dynasty big families was common. As the institution of Juntianzhi and Sanzhangzhi set up, the government tried to divide the big family into small ones, and in Sui dynasty this institution did not change, but the big family which kept together for several generations still got honor from the government.It is a transition period in Tang dynasty, social security mainly depends on private or family resources. The banning of break-up was well executed. In the Song dynasty the privatization became more and more popular in the whole society, the law, however, did not change with it. The government had to change its items constantly in order to avoid the conflicts between law and society. The Family Break-up Law in the Song dynasty changed a lot with the modification from emperor Songrenzong, the property right of children in a family was gradually recognized by the Court. In the time of Songxiaozong, the property earned by the children themselves became legal even when their parents and grandparents were still alive, after that, the law became conservative again, and family break-up was banned in many field. But the reality is converse. This law did not execute seriously by the officials, the rationality of family break-up was recognized by most people. Two important factors that contribute to the phenomena are the heavy burden on people from the office service corvee and numerous property law suits during that time.Throughout the Tang and Song dynasties there were more or less conflicts between the social reality and the law on family break up. Both the big family whose members contains several generations living together without division and the small family which owns their private property have advantages and disadvantages. The small families can improve the efficiency by the stimulation of property but bring problems of looking after elderly family members which was a problem from the Qin dynasty and seemingly making the relationship between brothers estranged. A big family, on the other hand, have a more equally distribution but can not enjoy the efficiency without a clear right of property and always lead to conflicts. So law suits increased in big families and make a heavy burden on the government branches which finally changed the law.A new kind of family pattern emerged from the Song which can properly overcome this difficulty:nuclear families which own their property unite together to maintain some public property in order to support public affairs such as looking after elderly people, relief facilities, education and other affairs. The families of Fan Zhongyan's clan was a model. Equality and efficiency both can well achieved in the same time.In the Yuan, Ming and Qing dynasties, this new family pattern like the Fans become popular in society, which have a great influence to the change of family break up law, though big families existed in the mean time, which became less and less as time flying. In the Ming dynasty the law which banned family break-up was abandoned in reality, as the government carried out new system about field arrangement and taxes which made it impossible to evade taxes, so the legal items about family break up existed only as a significance of moral principles.