The Crime Of Obstruction Of Marriage And Family

The crime of rape in pre-Qin dynasty started the modern crimes of obstruction ofmarriage. This paper explores the differences of traditional legal background from pre-Qindynasty period to Nanjing National Government to period.And this paper also focuses ondiscussing the constitute factors ofbigamy, adultery and crime of lure, which are the threekinds of crimes of obstruction of marriage.This paper bases on the judicial documents in Jiangbei，Chongqing. There are threefactors affect the crimes of obstruction of marriage in that period. They are Anti-JapaneseWar,moving the capital to Chongqing, the conflicts of old and new ideas, the conflicts andcompromises between law and tradition. This paper analyzes the quantity and ratio of Bigamy,Adultery and Lure in the crime of obstruction of marriage. Combining with specific cases, theauthor compares he similarities and differences of legal articles and judicial practice. Andthen dissect its profound history factors, social background, political background.War is an important incentive for bigamy cases. Around1941, a lot of men were urgedcompulsory military training. The families often maintain their livelihood by uxorilocalmarriage, which incarnates the distinct logic between national and its people. Meanwhile,concubinage, which with wedding and more than two witness, would be charged withbigamy，but only a misdemeanor offense. In these cases, the judges show their wisdom. Thelife of the law has not been logic: it has been experience. The judge combines the traditionalperceptions about marriage and pre-modern monogamy principle, and he focus more on theprivate interest inmarriage relationships.Law is an important incentive for adultery cases. In1941, Chongqing Blitz caused ahuge evacuation. The movement of people broke the stable monitoring networks in thecountryside, which increase probability of adultery. Meanwhile, the women whose husbandswere urged compulsory military training were very lonely. This is another reason that theycommitted adultery. In the judicial practice, adultery has characteristics of invisibility,contingency, so judges needs confession of both defendants. If one defendant deny the facts ofadultery, the judge need victim’s statement，physical evidence to form a evidence chain. Thefalse accusation in these cases embodies the confliction between the ideal of patriarchalsociety (called “adoption”or”Chengtiao”) and recent legal concepts. Besides the factor of law, there are various factors that lead to crime of lure. Forexample: being abetting by parents, have a poor husband, false accusation for money, have anaffair. These factors show the conflict between traditional ideal of “arranged marriage” andrecent ideal of free choice of partners. Meanwhile, the law in that period regulatesconcubinage.The current criminal law of our country does not regulate the crimes of obstruction ofmarriage. However, from the perspective of protecting legal interests, it is not proper toinclude bigamy to the crime of “anti-democratic and an infringement on the parental rights ofpeople”. Because they include different legal interests. As time goes by, there are more andmore illegal behavior such as extramarital relations，the third people outside the marriage,whoring, which violates the conjugal family relationship. Butthe Penalty Law of PublicSecurity Management and Marriage Law can’t regulate these behaviors. This paper discussesthe importance of the legislation of the crimes of obstruction of marriage from twoperspectives, one is social background, the other is social psychological. And then to provethat the legislation of adultery doesn’t violate private rights.