The Research On Ancient China’s Limitation To Marriage Dissolution And Its Revelation

The marriage dissolution system is an indispensable part of the marriage system. It was born simultaneously with the marriage system, and developed with the social system. Under the influence of the theory that man is an integral part of nature, the righteousness of couple and the interests of family, ancient China takes a permit attitude towards marriage dissolution. At the same time, it sets up some limitations to marriage dissolution. The marriage dissolution system in ancient China can be divided into two major categories, one is private dissolution and the other is official dissolution. The former includes “Chuqi” divorce system and “Liangyuan” divorce system, the latter mainly refers to mandatory divorce. This article sorts out the limitations to marriage dissolution from one marriage dissolution system to another. Specifically, in the system of “Chuqi” divorce, the limitations to marriage dissolution carry out though giving divorce rights to husband only, restricting fault reasons of divorce to “Qichu”, and stipulating the exemption clause of “Sanbuqu”. In the system of “Liangyuan” divorce, the limitations to marriage dissolution carry out though setting complicated procedure rules to ordinary people’s divorces, setting strict limits to the aristocracy’s divorces, and paying attention to reduce the negative impact of marriage dissolution. And the system of “Yijue” divorce also presents the two trends that the relationship of marriage itself receives more and more focus, and the mandatory forces of marriage dissolution is weakening. In general, during the period of the Xianqin dynasty and the Northern and Southern Dynasties, the marriage dissolution is still in an embryonic stage, during the Sui and Tang dynasties, the marriage dissolution is written in law, and Song, Yuan, Ming and Qing Dynasties are a flourishing period, during which the marriage dissolution is developed into mature. Ancient China’s marriage dissolution emphasizes family standard and the supreme of the husband, takes female’s interests into account, adopts diversified means of adjustment. All these are very helpful to overcome the shortcomings of legal system which gives marriage dissolution too much easiness in the progress of importing laws.However, ancient and modern legal systems are totally different. In the research on the ancient law’s revelations to contemporary legal system, we must take a firm stand that Only by reconstructing sporadic useful compositions in ancient legal system can we adapt the need of modern law society. The basic idea of contemporary marriage dissolution is to set moderate limits to divorce on the basis of freedom of divorce. It has good reasons. Marriage law of the People’s Republic of China always holds the guiding ideology that “to ensure freedom of divorce and to oppose wanton divorce” and has stipulated a advocacy term that "couples should be faithful to each other" and some other restrictive rules on divorce. These are the existing limits of divorce in law. This paper studies current disputes about restriction of marriage dissolution in a broader sense and also gives some advices. These advices are as follows. As to litigation divorce, we’d better take irretrievable breakdown of marriage along with incompatibility, completely eliminate fault reasons of divorce, and strengthen the effectiveness of mediation. As to agreement divorce, we’d better stick to formal examination by administrative organizations and set moderate restrictions on registration divorce.