A Study On The Disposal Of Marriage Disputes In New Courts In The Early Republic Of China

The early years of the Republic of China were the initial period of the transformation and development of modern civil law.For civil lawsuits in this period,the academia mostly focused on the interaction between the state and society,and paid little attention to the individual subject.But in fact,the key difference between the rise of modern civil law and traditional legal system lies in the protection of the rights of individual subject of law,and the beginning of civil trial is initiated by individual.Compared with other types of civil litigation cases,the litigation of marital disputes cases can better reflect the individual's will and struggle.This article focuses on the cases of marriage litigation in Jiangsu area in the early Republic of China.From the perspective of the state and the individual in the litigation,through the analysis of the specific rulings,it shows the characteristics of the new court's handling of marriage litigation in the early Republic of China in order to restore the individual in the civil litigation.In the introduction of this study,the author firstly puts forward the current situation and theoretical deficiencies of archival litigation.By summarizing the existing research situation,the author puts forward the core arguments.The archives used by the research institute are the judgments of JiangSu District Court in the early years of the Republic of China(including the magistrates of local counties and the Trial Chamber of JiangSu Higher Civil Court),showing the treatment of marital disputes at that time,and providing facts for the follow-up study.Historically,the general path of the settlement mechanism of marital disputes has gone through a social-oriented process,i.e.the folk groups with clans as the main force,and the transition to the state-oriented and social-oriented one,i.e.the combination of clans and complaints from prefectural and county government offices,until the establishment of the new court in the Republic of China and the reform of modern civil law,it has turned into a state-based and individual-based settlement mechanism,and the parties involved in the settlement of marital conflicts.As the main driving force,the status of the parties in the mechanism of marriage dispute settlement is becoming more and more important.According to this idea,firstly,the internal and external reasons for the new court to deal with marital disputes in the early Republic of China were analyzed,which originated from the limitations of traditional marital disputes handling mechanism.1.Negative litigation of the state 2.Weakness of civil mediation.With the social transformation leading to the collapse of clan system,it is difficult to rely on the acquaintance of the civil society to play a role.In this case,the new court has become apopular choice.In the first chapter of this article,the introduction part firstly clarifies the changes of the relationship among the state,society and individuals in the mechanism of handling marital disputes.It combs the academic history of marriage cases in the Republic of China.The research method of social legal history is used by most scholars.It can be called the basic method of legal archives research.It also clarifies the shortcomings and reference significance of the research,and puts forward the research of this paper.Research content,research methods and research significance.The second chapter analyses the advantages and limitations of the new court.The advantages and disadvantages of the new court in handling marital disputes are compared with those of the traditional one.Unlike the "repressive" nature of traditional marriage dispute resolution,the establishment of new courts has made marriage disputes more effective.From the traditional pursuit of substantive justice to the pursuit of procedural justice,individuals have become the only subject to promote civil litigation,and their will has been strongly expressed.The new court has become a new way to solve marriage and civil disputes.Chapter three introduces the expression of the intention of the parties involved in the marriage rectification in the early years of the Republic of China,taking Jiangsu as an example,in order to show the position of the parties in the lawsuit.Chapter IV shows the parties' struggle and struggle in dispute resolution through specific cases from two aspects of speech debate and evidence presentation.the Chapter five conclusion will summarize the status of the state and individuals in the litigation of marital disputes.In the early years of the Republic of China,the settlement mechanism of marital disputes gradually broke away from the way of rural mediation.The new court provided a new way for individual appeal.The relationship between the state and the individual became the new mainstream in modern times.There is a long way to go to protect the rights and interests of individual litigation.