民国时期纳妾现象的法社会学分析
发布时间：2018-11-19 10:28
【摘要】：在中国近代的社会变革时期,因社会变革的不彻底性,形成传统经济与市场经济并存的局面,于是制定法与民间习惯在社会秩序的控制过程中往往表现为一种矛盾的关系。以“纳妾”这一民间习惯来说,基于社会变革的不彻底性,其所赖以存在的传统小农经济的稳定性并未打破,纳妾这一民间习惯依然具有很强的社会控制力,影响和制约着人们的行为。北洋时期仍然沿用《大清现行刑律》中民事有效部分,对“妾”有明确的规则,体现了对这一民间习惯的承继。而在司法实践中,基于社会主体一定的法权要求以及政治上的考量,虽然纳妾这一民间习惯已经不为社会主体所普遍认同,但社会久已行之,如果不确认反而会在事实上造成法律关系的混乱,司法机关从稳定社会的角度对其进行确认与规制,于司法实践中确认了纳妾这一民间习惯的合法存在。到南京国民政府时期,国民党政权为了结束社会秩序的长期混乱状态,稳定政权的统治基础,建立现代意义上的法律体系,进行了一系列的立法活动。其中《中华民国民法》以及《中华民国刑法》等受现代法律理念的影响,完全摒弃了“妾”的规定。这一时期的法律体系更加完备,但立法上对民间习惯不予重视,最终导致制定法制作精良,但是却与要解决的社会纠纷显得格格不入,即制定法与民间习惯相脱离,与社会实践相脱节。在面对社会中普遍存在的因纳妾这一民间习惯所引发的种种纠纷时,便不能为此种纠纷的解决提供法律上的依据。因此只能寻求灵活的司法实践对制定法予以补充,对纳妾这一民间习惯所引起的纠纷进行规制。于是,最高法院不得不通过判例和解释例来对纳妾这一民间习惯进行规制,这些判例和解释例具有相当的法律拘束力,成为地方法院判案的依据。国民政府时期在司法实践中对待纳妾这一民间习惯的态度已与北洋时期有所不同,纳妾某种程度上可能构成重婚罪,并且夫妾关系的解除亦较北洋时期更为便利,无需有“不得已之事由”即可解除关系。妾的权利地位相较于北洋时期明显提高,妾的主体性不断得到加强,其对家长或夫族的人身依附性不断削弱,因此司法实践对纳妾这一民间习惯的逐渐消亡具有推动作用。
[Abstract]:In the period of social change in modern China, due to the lack of thoroughness of social change, the coexistence of traditional economy and market economy formed, so the law of making and folk custom often showed a contradictory relationship in the process of controlling the social order. In terms of the folk custom of "concubinage", the stability of the traditional small-scale peasant economy on which it depends has not been broken because of the imthoroughness of social change, and the folk habit of concubinage still has a strong social control. Influence and restrict people's behavior. In the period of Beiyang, the civil effective part of the present Criminal Law of the Qing Dynasty is still in use, and there are clear rules for concubinage, which embodies the inheritance of this folk custom. In judicial practice, based on the legal requirements of social subjects and political considerations, although concubinage, a folk custom, has not been generally accepted by social subjects, it has been practiced for a long time. If we don't confirm it, it will lead to the confusion of legal relationship in fact, the judicial organs confirm and regulate it from the angle of stabilizing society, and confirm the legal existence of concubinage as a folk custom in judicial practice. During the period of Nanjing National Government, the Kuomintang regime carried out a series of legislative activities in order to put an end to the long-term chaotic state of social order, stabilize the ruling foundation of the regime, and establish a legal system in the modern sense. Among them, the Civil Law of the Republic of China and the Criminal Law of the Republic of China were influenced by modern legal ideas and completely abandoned the stipulation of "concubinage". During this period, the legal system was more complete, but the legislation did not attach importance to folk habits, which resulted in well-made laws, but they were incompatible with the social disputes to be resolved, that is, the laws of enactment were divorced from folk habits. Out of touch with social practice. In the face of various disputes caused by concubinage as a folk custom in the society, it can not provide legal basis for the settlement of such disputes. Therefore, we can only seek flexible judicial practice to supplement the law and regulate the disputes caused by concubinage. As a result, the Supreme Court had to regulate concubinage as a folk custom through case law and interpretation cases, which had considerable legal binding force and became the basis for the local court to adjudicate cases. In the judicial practice of the National Government, the attitude towards concubinage was different from that in the period of the Northern Ocean. To some extent, concubinage might constitute the crime of bigamy, and the dissolution of the union of concubinage was more convenient than that of the period of the Northern Ocean. There is no need for a "last resort" to dissolve the relationship. Compared with the period of the Northern Ocean, the right status of concubinage was obviously improved, the subjectivity of concubinage was constantly strengthened, and its personal attachment to parents or husbands was constantly weakened. Therefore, judicial practice promoted the gradual disappearance of concubinage as a folk custom.
【学位授予单位】：南京师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D929
本文编号：2342027
[Abstract]:In the period of social change in modern China, due to the lack of thoroughness of social change, the coexistence of traditional economy and market economy formed, so the law of making and folk custom often showed a contradictory relationship in the process of controlling the social order. In terms of the folk custom of "concubinage", the stability of the traditional small-scale peasant economy on which it depends has not been broken because of the imthoroughness of social change, and the folk habit of concubinage still has a strong social control. Influence and restrict people's behavior. In the period of Beiyang, the civil effective part of the present Criminal Law of the Qing Dynasty is still in use, and there are clear rules for concubinage, which embodies the inheritance of this folk custom. In judicial practice, based on the legal requirements of social subjects and political considerations, although concubinage, a folk custom, has not been generally accepted by social subjects, it has been practiced for a long time. If we don't confirm it, it will lead to the confusion of legal relationship in fact, the judicial organs confirm and regulate it from the angle of stabilizing society, and confirm the legal existence of concubinage as a folk custom in judicial practice. During the period of Nanjing National Government, the Kuomintang regime carried out a series of legislative activities in order to put an end to the long-term chaotic state of social order, stabilize the ruling foundation of the regime, and establish a legal system in the modern sense. Among them, the Civil Law of the Republic of China and the Criminal Law of the Republic of China were influenced by modern legal ideas and completely abandoned the stipulation of "concubinage". During this period, the legal system was more complete, but the legislation did not attach importance to folk habits, which resulted in well-made laws, but they were incompatible with the social disputes to be resolved, that is, the laws of enactment were divorced from folk habits. Out of touch with social practice. In the face of various disputes caused by concubinage as a folk custom in the society, it can not provide legal basis for the settlement of such disputes. Therefore, we can only seek flexible judicial practice to supplement the law and regulate the disputes caused by concubinage. As a result, the Supreme Court had to regulate concubinage as a folk custom through case law and interpretation cases, which had considerable legal binding force and became the basis for the local court to adjudicate cases. In the judicial practice of the National Government, the attitude towards concubinage was different from that in the period of the Northern Ocean. To some extent, concubinage might constitute the crime of bigamy, and the dissolution of the union of concubinage was more convenient than that of the period of the Northern Ocean. There is no need for a "last resort" to dissolve the relationship. Compared with the period of the Northern Ocean, the right status of concubinage was obviously improved, the subjectivity of concubinage was constantly strengthened, and its personal attachment to parents or husbands was constantly weakened. Therefore, judicial practice promoted the gradual disappearance of concubinage as a folk custom.
【学位授予单位】：南京师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D929
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