| The law system of marriage in ancient China, which has a long history, is the typical example of unity between rite and law in the traditional Chinese legal system. Divorce system is an important part of marriage law. In the ancient Chinese marriage law, "yijue" divorce means the court judged spouses divorced because the faithfulness between the couple is regarded lost objectively when one of them or their relatives had committed certain crime regulated by law. It was a striking feature on judging divorce in ancient time. It revealed that in the past the purpose of marriage in essence was to keep faithful between the spouses, and showed the great concern and intervention by government to marriage. The purpose of this dissertation is not only to make up for the insufficiency of the present research on yijue divorce, but also to find out something valuable to the current divorce system. The dissertation can be divided into five parts, which goes as follows:The first part explores into the source of yijue divorce system, i.e. "yijue" in rite. Yijue divorce was brought forward for the first time required by rite. In ancient China, marriage was considered as the base of all kinds of social relation; therefore, it became the important content of rite to regulate marriage life. From Pre-Qin era, theory of yijue began sprout and then developed, during Han dynasty it tended to be ripe. At that time, it became common sense that faithfulness was the foundation of marriage. In practice, yijue was executed by morality and not restricted to divorce, thus causing some chaos.The second part discusses the institutionalization and practice of yijue divorce system : Yijue in law. Form Tang dynasty, yijue divorce began to be regulated comprehensively and intently in laws and regulations, meanwhile, it was strictly restricted within the scope of marriage. The relationship of the family of the spouse was stressed. If the spouse were considered to have lost faithfulness, divorce is unavoidable. Though developed and perfected in Song dynasty, yijue divorce system was approximately similar to that of Tang dynasty in spirit, principle, regulation and practice. During Yuan dynasty, on the base of inheriting the regulation of Tang and Song dynasties, the content of this system has beendeveloped through judicial precedent etc. Yijue became more scattered in regulation, lighter in punishment, and it attached importance to regulate marriage relation itself gradually. To a certain extent, it strengthened to protect women. Yijue of Ming and Qing dynasties existed in legal provisions. The definition of yijue, which was generalized in Yuan dynasty, was very different from that of Tang and Song. From law and ordinance and judicial precedent, the stress of divorce system in Ming and Qing has been shifted to marriage relation itself; yijue enhanced the divorce chance due to yijue and adopted more flexible versatility in divorce mandatory, that is to say, all spouses needn't divorce because of yijue.The third part analyses the legal effect of divorce resulting from yijue. The dissertation is angled at marriage law; therefore, the legal effect herein means civil legal effect, i.e. legal effect on status and property. Status is greatly significant to the life of the ancient common people, after divorce due to yijue, the spouse would never rejoin, the wife was forbidden to take marriage or adultery with the close relative of her former husband, but the relation between children and the parents continued.The forth part explains the reason for the formation and development of divorce system. The formation and improvement of yijue divorce system was resulted from a lot of factors. The purpose of ancient marriage, the status and function of patriarch and spouse were undoubtedly the foundation of divorce system; the change of people's attitude towards woman's chastity and remarriage improved the development of ancient system of divorce by yijue. In addition, the influence of economy on marriage, judicial concept of the judges and the change of sources of divorce law also had great influence on divorce system by yijue.The last part, linking yijue divorce system, the author ponders the present marriage system. Firstly, the divorce system in force has obvious flaws; secondly, we can find the value and possibility of ancient divorce system by yijue to the present system. Finally, the author gives us an initial conception on how to assimilate ancient system of divorce resulting from yijue reasonably. |
PDF Full Text Request