On The Civil Law～* Domestic-Relations Law Of Republic Of China

The legislation of law of personal status was seriously disputed and questioned in the process of the modernization of Chinese legal system in early 20 th century. Law of personal status is closely related to the tradition and custom of a nation so the conflict between foreign and local legislation in this field is irreconcilable and obvious. In this connection, the also falls in the category of an outcome of legal transplant, and as the first law of personal status adopted in modern times it plays a significant role in the legal history of China. This dissertation will expound the lawmaking background, some specific legislations, judicial practice and the evolution of , evaluate its status and nature, and then will discuss the advantages and disadvantages and also some rules of its evolution, all these analysis can be used for reference to improve Chinese Family Law. was enacted in 1930 and enforced in 1931 by the central government in NanJing. It is now a regional statute and only operative in TaiWan Province for the reason that it was abolished when the People's Republic of China was established in 1949. In order to make this abstract more compact, < Civil Law* Domestic-Relations Law of Republic of China> will be abbreviated as 'Domestic-Relations Law' in the following text.Except for the introduction and conclusion parts, this dissertation consists of the following five chapters.The first chapter discusses the legislation background of the ' Domestic-Relations Law'. During the 30 years from the revision of laws in the late Qing Dynasty to the enactment of the 'Domestic-Relations Law', there was a huge change of Chinese politics, economy and culture and all those changes had given rise to the modernization of the ' Domestic-Relations Law'. During the period of the late Qing Dynasty and early years of Republic of China, modern laws of Domestic-Relations emerged, so did the change of judicial practice towards the traditional laws of Domestic-Relations. All those legislation and judicial activities became the foundation for enacting the 'Domestic-Relations Law'. The draft of 'Domestic-Relations Law' by the Republic of China had some influence on the final enactment of 'Domestic-Relations Law' as well. The principles of the draft of 'Domestic-Relations Law' by Bureau of Legal System, Republic of China, were embodied in the explanation part of the 'Domestic-Relations Law' and naturally became its own basic principles of legislation.The second chapter is about some primary institutions of the 'Domestic-Relations Law'. The 'Domestic-Relations Law' incorporated some main institutions of continental law system, and made some adjustment to the traditional institutions of domestic-relations, with some feudal characteristics left. It adopted the rules of classification of relatives from the continental law, insisted on equality between male and female, but still reserved patriarch and concubine status in a family. For the relationship of spouses, it recognized both personal independence and patriarchy. With respect to divorce, it allowed equal rights for both sides, while insisted on divorce based on fault. As for parenthood, it shifted from Parents Standard to Children Standard , while reserved the fathers' privileges. In this sense, change and compromise are the two sides of the coin of the 'Domestic-Relations Law'. And the academic disputes resulted from the legislations mirrored conflicts of the different ideas towards the marriage and family at that time.The third chapter is about the analyses of the effect of judicial practice and execution of the 'Domestic-Relations Law'. The analysis of marriage case decided by the Supreme Court can somehow reflect the effect of the judicial practice of the 'Domestic-Relations Law'. If we take a look at those cases in the Supreme Court, we can find litigations of any kind, especially those about marriage contract and divorce. The emergence of those new types of marriage case indicates that there should be a reasonable room for the application of the 'Domestic-Relations Law'. We can also reach a conclusion from the analysis that it takes some time for the judges to fully understand the new statutes; for those marriage disputes, the judges were able to follow the law, but still may bring about unfairness because of overlooking the reality. No doubt there was a gap between the statute itself and the reality, and among other things, inflexible application of the law by judges is one important reason. Generally speaking, the execution of the 'Domestic-Relations Law' had some effect on the society, and more on the urban areas than on the rural areas.In chapter 4 the 'Domestic-Relations Law' will be compared with some other laws of domestic relation in different eras. When we compare the 'Domestic-Relations Law' with draft of domestic relation law of late Qing Dynasty and early years of Republic of China, we can find they are similar in form but the former was based on individuals whereas the latter was based on families. If we compare the 'Domestic-Relations Law' with Marriage Ordinance of Soviet (1931), though the former is more skillful in legislation art it is more conservative in its fundamental principles and content. The 'Domestic-Relations Law' has more feudatorial content and it did not overthrow the domestic relation traditions thoroughly. Domestic relations and even concepts about marriage and family were all profoundly and positively influenced by the Ordinance while the 'Domestic-Relations Law' only benefited female intellectuals in cites. Therefore it can be said that the Ordinance is an ideal and declarative legal document in contrast to the 'Domestic-Relations Law' which is nothing more than a conservative statute transplanted from the continental law system. In spite of this, the 'Domestic Relation Law' cannot be ignored as the first law of personal relation enacted in modern times.Chapter 5 is about the modification process of the 'Domestic-Relations Law' in TaiWan Province. The 'Domestic-Relations Law' was brought into force in 1945 and was modified materially three times during these years. In this process, lawmakers took steps to enact clauses based on personal rights rather than status. Increasingly, the 'Domestic-Relations Law' is pursuing equality in essence through providing some special protection to women which is in accord with the modern trend of law making.The 'Domestic-Relations Law' develops on the right track from inequality to equality between family members. The modernization history of the 'Domestic-Relations Law' is also the history of development of freedom in marriage, feminism and independence of individuals especially for women. Thus viewed, the enactment and revision of the 'Domestic-Relations Law' has faithfully reflects a true picture of this process to some degree.