The Study On Matrimonial Dispute And Primary Judiciary In The Mid-late Period Of The Republic Of China

Since the nineties of the twentieth century,more and more judicial files have been used in the study on Chinese legal history,and an increasing number of scholars from home and abroad began to attach importance to the research value of judicial files.From the perspective of judicial files,we can see the whole process clearly,from text representation to legal practice,and then seek the overlapping and deviation parts of the both.Whether in Chinese traditional society or in nowadays Chinese society,marriage is a social and legal issue that draws most attention.Matrimonial dispute is a mirror of the change in marriage and family under the special time and culture background,and it can be found the interaction among the society,family and individual from the small place.Researching the local judicial files will be useful for us to explore some issues in the historic condition of social and legal changes,such as how did local judiciary authorities make appropriate adaptations to apply the relatively stable laws to dynamic grass-root society,whether the modern legal system could be fully and effectively enforced or not,which factors in social change mayinfluence functions of the law,what impact would juridical practice from grass-root courts bring to the society,etc.This paper uses material on marital disputes of the mid-late period of Republic of China in Hekou Town,Jiangxi Province and Jiangxi Republic Daily and incomplete documents in other newspapers and magazines,adopts the method of researching history social law,researches on history of the practice of law,bases on sociology of law and highlights the coexistence,interaction,adaptation and deviation among legal system,juridical practice and grass-root society,in order to draw relevant conclusions.It can be divided into five chapters except introduction,and has conclusion.Firstly,judicial organ and matrimonial judicial files in Hekou Town are introduced in chapter one.There were 68 matrimonial dispute cases in judicial files of Hekou Town,and 66 of them were from local court in Hekou town,Jiangxi Province.The place where cases happened were in Yanshan and Hengfeng county,both of which were under the jurisdiction of local court in Hekou Town.Yanshan county and Hengfeng country were typical small inland counties.In the period of Republic of China,the two counties were caught up in a whirling vortex of war,and then in good condition over a period of time,with stable political situation,dramatic rising population and booming economies.Prosperity of commerce and trade economy stimulated the self-awareness awakening and change in people's value.The flow and immigration of people made social relations more and more complex.The above mentioned phenomena created uncertainties of social stability and matrimonial harmony.Most of the matrimonial disputes could be divided into engagement,matrimonial cohabitation and divorce.Judging from the expansion of the cases,divorce cases had the highest number,and matrimonial cohabitation cases took the second place.Among the suits,the overwhelming majority was filed by women.The phenomenon reflects the turbulent and revolution of modern society has influenced the subtle status change between the couple and the stabilization of marriage.Chapter two discusses the substantial law and procedural law when judiciaryauthorities in the Republic of China.The marriage system has experienced a transformation from tradition to modern times----from relevant legislation to Civil Law of the Republic of China in Nanking National Government.The engagement system brought forward the spiritual principles of contract freedom and laid emphasis on protection of personal rights of both parties,the marriage system emphasized the marital autonomy of both parties,while the divorce system highlighted the equal rights for men and women,freedom of marriage and other values.According to Part nine in Civil Procedure Law of the Republic of China,enforced in 1935,the suit for annulment of marriage,revocation of marriage,confirmation about whether the marriage relationship is valid or not,divorce and conjugal right,all of these were marriage event,which applied to personnel litigation procedure.The suit for matrimonial cohabitation and divorce could apply to pre-mediation,a method which court conducted conciliation before the plaintiff started a suit,and if the conciliation was fail,then it would be a later prosecution.The suit for uncertain engagement and other suits should apply to common litigation procedure and choose to apply to conciliation proceedings or start a suit directly.It manifests government of the Republic China maintained marriage with cautious and both parties could make their own choices.Chapter three mainly focuses on and analyses the files of divorce in judiciary files of matrimony in Hekou Town.Judiciary files are credible sources,which keep the record of legal activities.However,there may exist some inauthentic elements inevitably in judiciary files.To achieve their requests better,parties of the case always stated in a way that benefits them when he or she was asked to make a statement about the case.Among the divorce cases of judicial files in Hekou Town,almost all the parties filed for divorce according to ten legal reasons listed in Civil Law of Republic of China,Kin-relationship Volume,and most of the plaintiffs were women.From here we see that the primary cause of women to sue for divorce was to improve living condition and get life safeguard.The legal reason for divorce the grass rootschose in pleadings reflects the litigation strategies and justice considerations when they dealt with matrimonial disputes in the mid-late period of Republic of China.In the mid-late period of Republic of China,as the modernization transformation of the national legal system has reached a relatively high level,transformation of legal knowledge in the judicial field was expanding,which made the update of lawsuit words in grass-root society.Though it still had such expressions as “Yuanyi” from plaint in the Qing dynasty to some extent,something about the right which reflected modernization had become more and more common in juridical practice.Chapter four mainly analyses the real form of operation in grass-root judicial.When people met a dispute and find it hard to deal with,they tended to seek help from civil mediation.The civil meditation in Chinese traditional legal culture still played a crucial part in the period of the Republic of China,with its merited such as low cost,fast convergence and acceptability.Under the new background,parties would also find new method to relieve themselves before litigation,for example,they might make a statement in the newspaper,even appointed a lawyer to issue a notice on the newspaper then had a fierce battle with the counterpart.Requesting for conciliation or putting on file were choices of parties in matrimonial disputes in the Republic of China.Civil cases should be strictly enforced to mediate according to law.From the view of methods of settling the cases,nearly half of the matrimonial disputes ended up with conciliation.There is no denying that conciliation really played an important role in juridical practice form its formation,and accorded with the system design by Nanking National Government.However,most of the cases ended up with fails.There has to be something related to the rapid increase of civil cases in the mid-late period of the Republic of China and the dilemma of staff shortages in court while there were too many cases.In the process of litigation,they still attached importance to the method.On the whole,mediation methods have played their part in settling disputes in the period of the Republic of China,were beneficial to resolve social conflicts and maintain social stability.By analyzing closed cases of marriage,we can find thatfettered by ineradicable traditional marriage concept,judges in the mid-late period of the Republic of China made every endeavor to maintain the marriage relationship under the manus.In theory,cases should be judged by the law,however the human feelings and the reasons were taken into consideration,and judges always tended to them.Comparing with advanced marriage legal system,the modernization of grass-root society still has a long way to go.Chapter five stresses the realizing condition of grass-root judicial practice about right in marital law.The marriage law in the Civil Law of Republic of China,Kin-relationship Volume,set equality between the sexes and freedom of marriage as the value idea and legislative principle.Marriage autonomy is inevitably core content.But,all the rights from the legal text couldn't be achieved in juridical practice.As a matter of fact,marriage rights met many barriers in the mid-late period of the Republic of China.Firstly,when the judge was faced with a case,he should apply the modernized law to solve the dispute,in the meanwhile,he might be trapped with trial tradition which included persuasion and enlightenment.The thought more or less restrained the realization of marriage rights.Secondly,the majority of grass-root people didn't have common legal basis and modernized legal knowledge.They always lacked proof ability because of shortage of civil rights and the consciousness of preserving evidence,so they lost the suit at last and couldn't realize their rights.Moreover,as far as the party itself was concerned,the first cause of taking a suit for divorce was insufficient,it also influenced the realization of rights.When the case ended up with conciliation fail,the party might choose to patch up the suit and reconcile,certainly,they would take the litigation into account.Last but not the least,traditional forces of patriarchy,such as fatherhood,hesitation of women,the only choice of depending their husbands to live on and judges were always biased towards the husbands.Listed factors blocked the realization of marriage rights to some extent.The final discussion in this chapter is about two special cases,one is requesting for separation by wife,the other is requesting to remove the obligation of livingtogether.The separation has become a buffer system that eased relationship of couples by juridical practice.As it still kept the relationships,so husbands were likely to compromise with the requests of their wives,which furthered the realization of women's autonomy in marriage.Matrimonial cohabitation was mainly manifested as the concubine suit for relieving cohabitation.From the point of effects,plaintiffs achieved their suits at last,which boosted the spreading of the value of equality between men and women in grass-root society.In the part of conclusion,it mainly focuses on the advancement of the marriage law and the interaction with society under background of the Republic of China.In the process of transition of society from tradition to modern times,when the judiciary authorities dealt with marriage disputes according to advanced marriage law,not only should the authorities trial in accordance with the law,but also obeyed the social rules,in the meanwhile,their judicial act would influence people's behavior guidance and social value to a certain degree.