Research Of Magistrate Hearing Widow Remarriage Cases In Late Qing Dynasty

Widow remarriage is a special form of marriage and also an inevitable issue indaily life. Because it involves complex relationship among several families,contention and lawsuit should raise if the cases of property and personal aspectshaven’t got a proper solution. Gernerally, magistrate will firstly apply state law tothese contentions. In case of no law articles are found form state law to apply to thecontention, flexibly apply civil customary as basis of justice and take full account oflocal civil habits are necessary for a magistrate to make judgements.This article is based on historical data analysis method, taking Tajingting officialcorrespondence as main research material, using Report of civil customary asevidence of existing justice of widow remarriage in Gorong, Jiangsu province. Thispaper attempt to consult relative articles and elaborate issues aforesaid to make clearhow magistrate hearing remarriage cases of late Qing Dynasty.This article consists of four parts. The first part sketches out the issue of widowremarriage and tease out how widow remarriage changes in law, society and history.We can see that the widow remarriage was not prohibited by law, but notoriety amongthe folk. The second part describes different forms of widow remarriage. Accordingto this paper, widow remarriage has four forms, remarriage autonomously, forcedremarriage, widow seeks husband, and cheating remarriage. The four forms ofremarriage will be described in detail and be taken as foreshadowing for casesanalyzing in next part of this paper. The third part expresses the choices of magistratein processing the widow remarriage cases. This part bases on the cases mentioned inTajingting official correspondence, and classifies the cases relate to widowremarriage issues by four topics.1.The legitimacy of widow remarriage;2.Propertyinheritance of son-in-law and pension issues of widow’s parents;3.The legal effectissue of behavior of young offspring’s agent before the offspring inherits theproperty;4.Issues about education for young kids of ex-husband. In the process ofjuridical judgements, the magistrate could find and apply proper law to handle the first issue. But the last three issues have no articles of law exist can be applied to. Inthis case, the magistrates make judgements through the way of judicial decision,which not only recognized the effect of civil habits, but also makes up the gap of law.The last part of this paper shows the research productions of how magistrate hearingwidow remarriage In late Qing Dynasty and gives the core viewpoint—therelationship of state law and civil habits. In juridical practice, magistrates follow theprinciple of state law first, and if no state law can be applied to, civil habits which arenot conflict with state law are chosen as gist. In this principle, magistrate treatsmultiple sources of law as one complete and unified rule system, and thus makes statelaw and civil habits cooperate into a monism system for judgement. Although thecivil habits are autonomic in folks and have different sources from state legislation,but in fact, they have some relationships. In process of juridical judgements,magistrate permits and apply civil habits to cease contentions, in this way, civil habitsgot important ways to interact with state laws. So, in process of cease conflict andcontentions, civil habits play a role of cooperate with state law to balance the benefitsbetween civilian and state and finally, a harmonious social order forms.