Public Governance Through Private Law-the Advancing Of Political Order And Changes Of Family Law In China Since The Modern Times

As the most typical souce of private law,family law has been regarded a law to adjust equal relations within a relatively closed field.However,with outstanding development of family relations and its radiating field "with law yet without order"and the demand of strengthening the expectations of asking family relations to participate in formation of orders as required by political development of China,we need to re-think mutual relations of family law and political law and find out the role of private law in public governance.With the concept of political order's structure as the main path,the research analyzed the changes of family law and advancing of political order since the modern times.Political order in structural sense refers to internal state and mutual relations of subjects in political life essentially.In China,these subjects include state sphere,social sphere,family sphere and individual sphere.Such structure is both historical and practical.At the late Qing Dynasty and the early Republic of China,though the spreading of individual conception and awakening of public spirit have transferred the foundation of state sphere to nationalism,they did not sow the seed of individual sphere as expected.After revising family law in large scale several times by referring to western one,it still had little influence on political order as it did not actually respond to demand of family sphere and individual sphere.Instead,it weakened the legal basis for the latter to gain possible approval.In the 1930s and 1940s,two political orders were co-existent.Nationalist Government wanted to strengthen authority in state sphere and achieve the purposes of consolidating resource control and meeting upper families' personal gains of politics with the aid of the traditional state-family structure.But the Communist Party of China was making efforts of forming new order structure to build a new regime.So,the two systems of family law formulated were different correspondingly in principles and specific regulations,as the one of the Nationalist Government came to terms with traditional system much,but terms and conditions of law formulated by the Communist Party of China were simple and brief in statement and some contents returned to traditional ones even the law abandoned old things and pursued new channels to a great extent.Within 30 years from the founding of new China,almighty developing direction was still continued in state sphere under the stress of building new ones and removing the old ones as well as the continued thinking pattern of revolution,but it inhibited its growth in social sphere,family sphere and individual sphere.Family law became the instrument to remove old order,but its contents were simple and weak in operability and its judicial standards were not uniform,the status of mandatory force in state sphere in family and individual life was consolidated objectively.As a result,drive the"politicalization" of family sphere and individual sphere,or the flow of resources to state sphere and restriction of contrary flow.After starting the reform and opening up,family law was constantly revised under the new political order and design pattern with construction as the main body.In state sphere,a lot of affairs were left to family and individual in state sphere in order to strengthen economic functions,but the gap of social sphere and shortage of responsibility awareness in individual sphere made family sphere overwhelmed.As family law stressed protection of natural relations' stability and set increasing obligations for family and increased individual rights especially independent property rights,it ensured the concentration of resources needed for economic construction and drove the generation and development of social sphere.After making previous analysis,this paper worked out conclusions:political order can weaken its color of mandatory structuring by depending on activities of family law for adjusting natural relations,so as to strengthen approval of legality and gain trust and obedience from down to up and then realize organic coupling.Meanwhile,it screens family law and removes the norms violating the essence out of legal system.Family law is not the dependency of political order only,as it has its own rules and continuity.The changes of political order will not completely change it immediately,as it is still existent as constructive or criticism force together with political order.In some circumstances,it even can weaken the structure of political order.The rules will be of implication to further revise family law and advance political order of China and conducive for us to understand how to achieve public governance through private law.