Researching Of The Concubine’s Legal Status Of The Period Of The Republic Of China

During the period of Republic of China,western ideas came to east,and a lot offar-sighted persons went abroad, so the wisdom of people were developing. At thattime, there was fierce collision between Chinese traditional law system and modernlaw system,especially focus on the promotion of private rights and women’s rights. Inthis paper, the legal status of concubines which were a marginal groups of women isset to be a breakthrough point to survey issues such as women’s identity right,socialstatus,etc. in the period of ROC with integration of western thoughts and legislationof ROC. This paper will set a base of integration of the static analysis to law,legislation,establishment of Judicial institutions,etc. with the dynamic investigation oflegal thoughts,law culture,social progress,etc.,on which we can investigate the civilrights awareness and social custom of ROC influenced by the west, discuss thefeatures of legislation,justice,social status of the group of concubines, and investigateissues such as the relation of women’s rights and social,law culture.As for the research methods,this paper is trying to arrange the development ofthe changes of the rights of the special group of concubines, and then to observe theoverall value orientation of women’s rights especially from social in the period ofROC. The great quantity of material about laws and judicial precedent provide a wealth of information for researching legal status in that period.The news paperreviews and law journals about women’s issues then also restore true public opinionorientation to a certain extent in the view of sociology, Because of warlordism andsocial disorder in the early age of ROC, appeal of women’s rights receiveddisappointing result.This paper will show the changes of concubines of ROCgenerally through analyzing judicial determination solution about concubines heardby Beiyang government’s great court of justice and Nanking government’s supremecourt and the judgment about marriage,making heir and property.The Introduction of his paper leads to the issues,and analyze the creation of theissues, the research history,materials,methods,etc.This writer is mainly from thefollowing aspects to elaborate.Chapter One: The origin and legal status in traditional society of concubines.This chapter elaborate the origin and form of the special group of concubines fromfollowing aspect:Historical roots such as offspring,lust for women,seeking positionsand riches for others;Source such as girls from poor families,slaves orservant-girls,actress and prostitutes;Mode such as making wife’s younger sister as aconcubine,plunder,accepting concubines as gifts,making a servant-girl as a concubine,marrying a prostitute. Then the paper analyze the family and legal status of theconcubines in traditional China.Because of the concubines and their husbands didn’tget married in an open, correct manner,lacking the necessary condition of marriage,so their family status were doomed to be humble.In the judicial practice, concubinesalso suffer unfair treatment such as sharing the same charge but different guilt,sameguilt but different laws with the wives for their humble status.In the accept of property,the three very issues of concubines’ right were private property,inheritance of the latehusbands’property and inheritance families’ property,these issues had experienced aprogress from ambiguity exists to being classified by law. After all,concubines systemcouldn’t contend with traditional ideas and customs,so humble status were difficult tochang through time.Chapter Two: The issues of concubines and the argument about the legislation.Since the modern times, east met the west,the wisdom of people were developing,enlightened intellectuals and woman’s organization began to attackconcubinage,appeal for its abolishment and monogamy under the influence ofthoughts as freedom,democracy and the equality of men and women. However,forhistorical reasons, during the period of ROC,concubinage remains widespread amongwarlords,officials,celebrities and substantial citizens. On the other hand,under theinfluence of thoughts as free love and freedom of marriage, there were difference inthe backgrounds of concubines, they were poor girls,daughters of decent families andschoolgirls,and their circumstances shifted from being forced to being willing to. Asfor legislation and justice,in early time of Beiyang government,the civil judicialactivities were still according to the effective part of civil from The current criminallaw of Qing Dynasty,which didn’t avoid concubinage,but expressly stated. Later thelaw was revise twice to become The draft law of the People Republic of China, inwhose article remained the regulations of "sons born of the legal wife" and"illegitimate sons" thought didn’t contain the word "concubine",which acquiesced inthe legitimacy and existence of concubinage. Then in The Republic of China civil law,family chapter promulgated and enforced by Nanking government,thought bigamywas prohibited, concubinage wasn’t regarded as marriage in the law, so "Naturally itcan not be called as bigamy.".Judicial organs had to adjust for the ubiquitousconcubinage and the law relationship provided by it.The ambiguity about concubinesreflected the incompleteness in the modernization of law reform during a period oftransition.Chapter Three: The status and rights of concubines in the marriage law.During the period of ROC, the several revisions of civil law all kept silent andavoided to concubines’ legal status.But administrations of justice couldn’t avoid.Faceda great deal of law relation provided by the existence of concubines,they had toestablish the legal status of concubines by judicial precedent. As for the relation ofhusbands and concubines, not as the master and servant relation defined in feudaltimes,Beiyang government’s great court of justice and Nanking government’s supremecourt both express it as a kind of contractual relationship and give concubines theidentity of the families by judicial precedent. On the basis of this expression, the law recognized that concubines have the rights of private property,limited rights ofheritage management and rights of testamentary inheritance. For the relation ofconcubines and wives, civil justice organs gave legal wives rights superviseconcubines,wives’ authority was protected.But in real life,concubines performed morechallenges to wives’ especially in the aspects of family property and will for they wonloved from families’ heads.For this,the Inheritance chapter of civil law tried to ensurelegal wives’ logos identity through setting a reservation part in legacy.For the"Marriage" relation between concubines and families’ heads, not as traditionalcustoms that concubines were highly dependent on families’ heads and the later couldabandon concubines at will,in ROC period,concubines could dissolve with families’heads by agreement,which advanced a lot in the right to freedom of choice.Becausecivil law defined the relation between families’ heads and concubines as a kind ofcontractual relationship, and then gave concubines same rights to requestcompensation for fault damage as wives, which meant that when a family’s headterminated the contract for reason of himself or family members he was responsiblefor compensation for fault damage.Further,through judicial precedent, the law definedthat even the husbands had no fault when terminating the contract,he still had to givean amount of cost of maintenance.According to these development,concubines’position in the economic aspect of marriage raise obviously.Chapter Four: The position and rights of concubines in law of domestic relation.In the aspect of paternity, through justice practice, Beiyang government’s great courtof justice defined that concubines ’s position as family members was same aschildren.The custody, guardianship and agent right of concubines to the underagechildren born by them were after the rights of families’ heads and legal wives.Whenfamilies’ heads passed away,the legacy inherited by the underage children born by aconcubine should be managed by legal wife and had nothing to do with theconcubine.After the implementation of new civil law during the time of Nankinggovernment,the legal wives didn’t have those privilege to the children born byconcubines, because new civil law only recognized blood relationship and formaladoption relationship,and concubines were the lineal parents of those children, could fully exercise the rights as mothers for the first time in Chinese history. Forconcubines’ right to be supported,both Beiyang government’s great court of justiceand Nanking government’s supreme court defined clearly that despite the lack oflegally marriage relation between concubines and families’ heads,the concubines werestill family members,so the families’ heads should assume the obligations forsupporting.If a family head passed away and his concubine preserved chastity for him,heir or manager to the fortune of the family head also should assume the obligationsfor supporting.The great court of justice defined clearly that a late family’s head’sconcubine had rights to use and get income from support property,but had no right toown support property,so they couldn’t disposition the support property withoutauthorization.Chapter Five:The position and rights of concubines in the law of inheritance.For making heir, the most important link of inheritance system,the great court ofjustice defined that when a family’s head or his legal wife was alive,both the rights ofmaking heir and abolishing heir could only be exercised by them,concubines didn’thave these rights.If the family’s head and his legal wife both passed away,and if aconcubine wanted to make a heir for the family’s head,she had to ask for a familymeeting to take charge of this.The concubine couldn’t select a heir without theagreement of the family meeting,and the family meeting couldn’t select a heir withoutthe agreement of the concubine either,they must make an agreement to make theaction legally valid.Of course,if a heir had been made,the concubines had no right toabolish him. During the time of NanKing government,because The Republic of Chinacivil law didn’t recognize inheritance of family lineage,so there was no issue aboutselection a heir.In the aspect of late husband’s legacy,despite the status of the heir’sbiological mother,if the heir was underage,the right to manage the legacy belong tothe legal wife.If the heir was adult and born by a concubine,the concubine had theconsent right of the son’s disposition of property,and also had the cancellation right offamily members’ disposition of property without cogent reason. Of course,the law isnot constant,if a family’s head had made a will before death,the concubine could haveright of property management according to the will.In addition,if the family’s head had no will,but there was really no other person with right of propertymanagement,the concubine preserved chastity for him could get right of propertymanagement.For the legal status of the children born by concubines,the great court ofjustice during early time of ROC didn’t overemphasize their mothers’ differences,tended to treat them equally in practice.As for the legal status in inheritance,the greatcourt of justice implement equal division among the sons,but when the son who wasborn by a concubine and should inherit the legacy lived with his biological mother orlived in illegal separation and didn’t share the same property with his biologicalmother,if he wanted to dispose the property,he must get the agreement from hisbiological mother,or the disposition will be legally void.Different from traditionalsociety,the ROC government recognized women’s right of inheritance,as for adaughter born by a concubine,the great court of justice gave her the right to inherit apart of property from her later father as appropriate,It was quite a significant changefor concubines’ daughters.Epilogue:On the basis of review the whole paper,it mainly analyze and sum upthe leading factors and features of the changes of position of the concubines in ROCsociety,generally elaborate the protect to concubines during the time of ROC andconflict among family marriage systems at that time.By means of analyzing,we candiscover that in the society of ROC,the origin of the change of concubines’ socialand legal status was social reform.At that time,the feudal regime was terminated,newideas such as quality of personality and freedom of marriage made powerful influenceto the thought of people through the spread by intellectual and democraticpersonage.Meanwhile,with the transformation of the materialization of law,women’srights got expansion by the appropriate protection for the special group ofconcubines.Overall,in ROC society,there was certain contingency in legislation forconcubinage,which was mainly reflected in the rise of position in the criminallaw.The law realized that husband,wife and concubine received almost same sentenceunder normal illegal circumstances and almost cancel the rule of " same crime withdifferent punishment",made the positions of concubines tend towards to wives andeven husbands.The civil law didn’t refer to concubinage’s legislation,generally adjusted the concubines’ rights and positions through justice practice mainly indefining clearly that concubines’ identity were family members who should share thesame treatment as other members and had the right to apply for termination therelation with families’ heads by themselves,and families’ heads couldn’t abandonconcubines without cogent reason.Based on this,the great court of justice recognizedand protected concubines’ property right;,gave them complete private property rightand a degree of property management right and inheritance right.In the aspect,thestatus of mothers were not emphasized but the average allocation among the sons wasimplemented,finally the concubines’ daughters’ right to inherit a part of property fromher later father was confirm.However,the protection of concubines in justice practicecontradict with the establishment of monogamy inevitably,even led to somesituations that the wives were inferior to concubines,but there had no other choiceduring the ROC period as the turn of old and new times and integration of old andnew thoughts were in progress.This phenomenon can only disappear gradually in pacewith the complete establishment of a new social system and the public’s new conceptof family and marriage.