| Marriage is a special system that binding series of complex social relationship,such as the way to uniting couples, to regulating the blood relationship after humansociety entering the age of civilization. And it is a bisexual union recognized bycurrent society and the premise of family.As a legal concept, marriage actually means marriage system that consists ofthree aspects, which is based on the union of man and women, aimed at livingtogether for long and announced the spousal relationship. Marriage system, as thecore of marriage law and the basis of overall structure for marriage, plays significantrole in ensuring marriage constancy, maintaining basic rights and interests for womenand children as well as promoting stability of basic social unit.China, a civilized country with over five-thousand-year history, performed theunequal marriage system, which mainly manifests the class inequality, serious statusimparity between man and women and polygamy legality since slavery society. It isnot until the legal reform in late Qing dynasty in20thcentury did China cast off theshackle of feudal culture in marriage legislation and marriage system and marchforward the long journey of modern civilization.The legislation activities and cultural diffusion that brought the western thoughtsto the east and enlightening Chinese residents, together with the marriage system aimed at realizing the value of the nuclear family structure and monogamy wasintroduced to China in late Qing Dynasty and early Republic of China and widelyadopted by the residents. Thus, even marriage legislations before liberation war maylay particular focus on different aspects; they must all concentrate on this social value.The establishment of People’s Republic of China in1949, however, almost cleaned upthe inextricable feudal influence overnight and immediately promoted the women’sliberation movement from up and down across the country. Along with theenforcement of Marriage Law of P.R.C in1950, China’s marriage law legislation hasofficially stepped into the modern civilized team, with a rather peaceful30years later.However, since the opening up and reform, while the social economy and culture ofChina is enduring dramatic change, some feudal marriage value that has been clearedand outdated marriage system has resurged and been denounced by residents andcompelled the latest version of China’s marriage law to face a new reform. After aboost of study family law of common law system during the opening up and reform,theorists rekindle a trend of study the marriage and family law of civil law countries,and practical department also timely adjusts the marriage law’s impact on families andfamily economic activities on the basis of social economy changes, thus seeking tokeep balance among maintaining individual rights and interests, protecting familyintegrity and facilitating family harmony. Therefore, in an era of replacement,collecting and studying the transplantation and localization process of recent andmodern China’s marriage law is theoretically and practically significant.In combination of family sociology and legislative technique, this articleattempts to comprehend and explain the transplantation and localization process ofrecent and modern marriage law legislation. And in addition to introduction andconclusion part, it can be divided into4chapters.Chapter I discusses the China’s marriage legislation in early20thcentury. Thischapter shall select and analyze marriage legislation in Amending Penal Code of QingDynasty and the Draft Civil Law of Qing Dynasty, which were drawn up in late QingDynasty. By combining the legislator’s view and temporal ethos, Chapter Onesummarizes the influence on marriage caused by late Qing’s Social progress requirement and thoughts of democracy and civil rights, and construes the social rootsand institutional reasons for why the feudal marriage system cannot be abolished inlate Qing.Chapter II focuses on China’s marriage legislation in the period of BeiyangGovernment. After Beiyang Government established, although it is still called“Republic of China”, China’s semicolonial and semifeudal nature remains unchanged.However, the outbreak of May4th Movement in1919, which caused the NewCultural Movement’s shock social effect, finally urged the Draft of Civil Code ofRepublic of China in1925, which has made far more progress compared with theCivil Code of Republic of China-Family Volume Draft in1915and forced China’smarriage system to break through the imprisonment of feudal marriage system both interms of form and content.Chapter III analyzes China’s marriage legislation in the period of NanjingNational Government. The “Ning-Han Collaboration” in1927finally brought Chinaformally unified governed by Nanjing National Government. From then till1949,China’s marriage legislation, based on the Civil Law of Republic of China·Family,initiated genuine modernization in aspects of marriage contract, matrimony, divorceand guardianship system etc. Generally speaking, it moves slowly forward whileconfronting and compromising with the feudal marriage system, and only in twoaspects, pursuit the love of freedom and equality between men and women, achievedhistorical breakthrough.Chapter IV, the focus of this article, particularly illustrates the marriagelegislation of People’s Republic of China. After the establishment of New China, legalconstruction is almost imitating the former Soviet Union’s practice. In the field ofcivil law, China also inherit the civil law of the former Soviet Union andcomprehensively transplant the former Soviet Union mode both in legal thought andlegal education, thus causing a thorough impact on jurisprudence of China.In the early time of New China, a subversive marriage system revolution hasextended from the central to local, together with women’s liberation movement. Theimpact of the enactment of the Marriage Law of the PRC in1950is no less than that of the ratification of the Constitution of the PRC. Three principles transplanted fromSoviet marriage law has profoundly shaped Chinese society, with the status of womenpromoting sharply overnight, the divorce rate soaring, the old type marriage andfeudal marriage surrferring crushing blow. China’s marriage legislation and marriagesystem has immediately completed the progress from early modern times to thecontemporary period. Nevertheless, in the later conclusion of this political-stylelegislation revolution for marriage law, we also learnt many mistakes and experience,thus giving reference to amendment of the1980Marriage Law.While China has stepped into the pathway of opening up and reform from1979,marriage law, as an independent department law still dissociated from the civil lawsystem. Although the amendment of the Marriage Law of the PRC has been approvedin1980, yet marriage law cannot get rid of the impact of Soviet mode, thusforeshadowing China’s effort to cast off such impact. In the following20years,studying and imitating the family law of common law countries was almost thegeneral consensus of internal scholars, and such unremitting effort eventually bearingample fruit on April28th,2001. A new Marriage Law of the PRC with little impact ofSoviet legislation mode was enacted, which no longer fixed itself in one legislationmode but widely imitating multinational legislation modes. The2001Marriage lawhas been implemented for over13years, although the three judicial interpretationshave successively caused many disputes, the function of facilitating social progress isstill distinct and impels the academic circle to pay their attention back to the marriagelegislation of civil law countries, thus striving us to consider the rights and interestsfor each party in an even more thoughtful and comprehensive way in next marriagelegislation.From the recent period, China’s marriage legislation has gone through a hundredyears’ development and changes, the special Chinese view on marriage and modernnuclear family concept has been constantly confronting and integrating. Not until theopening up and reform from1978, with the thorough development of market economy,international connection of social economic structure as well as the modernization offamily economy mode, did modern family theory obtain the opportunity to entirely incorporate into Chinese society, thus giving us a prospect of bringing China’smarriage system into the modern marriage and family system. |
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