唐代婚姻解除制度研究

发布时间：2018-10-20 15:13

【摘要】：婚姻解除制度是婚姻制度中必不可少的一部分,而唐代婚姻解除的立法技术、法律原理、法制观念方面的成就无疑代表了中国传统律学发展的最高峰。本文尝试从三个方面对唐代婚姻解除制度做整体研究,分别是:唐代婚姻解除的类型、唐律婚姻解除的程序和效力、违反唐代婚姻解除的法律责任。最后根据文章前三章总结出唐代婚姻解除制度的,包括唐代婚姻解除的立法技术和立法思想上的优缺点。首先,就唐代婚姻解除的类型,目前学术界对唐代婚姻解除的类型只是简单地分为七出、和离、义绝和官府强制离婚和违律弃妻等,本文试图以婚姻解除的主体为依据,总结出唐代婚姻解除的类型,分别是单方解除婚姻、双方解除婚姻以及第三方强制解除婚姻。对于前两种离婚类型,大多数学者在其文章中都有论及,但官府强制离异这种婚姻解除类型往往不在其文章范围之内,但作者认为也应将其归为婚姻解除的类型,主要原因就是官府强制解除这种非法婚姻已经经过结婚程序,是一种既遂婚姻,但这一婚姻虽已既遂却属非法,不能再存在,必须回到原点,故需离婚。其次,本文在论述唐代婚姻解除的程序、效力和法律后果时,虽然是从整体上论述,但毕竟每一种婚姻解除类型都有其自身特有的程序、效力和法律后果,因此每一种类型的独特之处都会在文中表明。再次,目前学术界鲜少有文章或专著论述违反唐代婚姻解除的法律责任,笔者对其进行了较为详细的论证,并将其按照现代法学的视角对每一种处罚进行性质界定。笔者认为婚姻解除的法律责任其实有两种,一种是违律解除婚姻的法律责任,另—种是婚姻解除作为民事附带的法律责任。两类责任的主体不同,在惩罚时的主观状态也不尽相同,可以说是唐律先进之处的体现。最后,就唐代婚姻解除制度的评析而言,本部分分为唐代婚姻解除的优点和局限性两个方面。唐代婚姻解除的先进性与合理性不仅体现在思想上,也蕴含在立法技术里。例如和离制度应是唐代婚姻法律传统对后世影响最大的制度,给予了夫妻双方充分的自由选择权,对社会产生积极的影响。而唐代婚姻解除的局限性包括立法思想上的局限性与立法内容上的不完善。例如没有专门的婚姻解除管理机构,对婚姻解除的法律责任往往是以刑事处罚为主民事处罚为辅等。综上,笔者认为对唐代法律的专研对我们更好地理解与借鉴传统法制意义深远,也希望通过论述唐代婚姻解除制度对现代婚姻体制有些微的理论和现实意义。
[Abstract]:The dissolution of marriage system is an indispensable part of the marriage system, and the achievements in the legislative techniques, legal principles and legal concepts of the dissolution of marriage in the Tang Dynasty undoubtedly represent the peak of the development of Chinese traditional law science. This paper tries to make a whole study on the dissolution of marriage in Tang Dynasty from three aspects: the type of dissolution of marriage in Tang Dynasty, the procedure and effect of dissolution of marriage in Tang Dynasty, and the violation of the legal responsibility of dissolution of marriage in Tang Dynasty. Finally, according to the first three chapters of the article summarized the Tang Dynasty marriage dissolution system, including the Tang Dynasty marriage dissolution legislative techniques and legislative ideas advantages and disadvantages. First of all, as to the types of dissolution of marriage in the Tang Dynasty, the types of dissolution of marriage in the Tang Dynasty are simply divided into seven categories in the academic circles, namely, forced divorce and disobeying the law, and so on. This paper attempts to take the subject of dissolution of marriage as the basis. The types of dissolution of marriage in Tang Dynasty are unilateral dissolution of marriage, dissolution of marriage of both parties and compulsory dissolution of marriage of third party. For the first two types of divorce, most scholars have discussed them in their articles. However, forced divorce by the government is often outside the scope of their articles, but the author thinks that it should also be classified as the type of dissolution of marriage. The main reason is that the forced dissolution of this illegal marriage has been through the marriage process, is a completed marriage, but this marriage has been completed but illegal, can no longer exist, must go back to the origin, so it needs divorce. Secondly, this article discusses the procedure, effect and legal consequence of marriage dissolution in Tang Dynasty, although it is discussed from the whole, after all, each kind of marriage dissolution has its own special procedure, effect and legal consequence. Therefore, the uniqueness of each type will be shown in the article. Thirdly, there are few articles or monographs on the legal responsibility of breaking the dissolution of marriage in Tang Dynasty. The author has demonstrated it in detail and defined the nature of each punishment according to the perspective of modern law. The author thinks that there are actually two kinds of legal liability for dissolution of marriage, one is the legal liability of dissolving marriage against the law, and the other is the dissolution of marriage as a civil incidental legal liability. The subjects of the two kinds of responsibilities are different, and the subjective state of punishment is different, which can be said to be the embodiment of the advanced aspects of the Tang Dynasty Law. Finally, on the analysis of the dissolution of marriage in Tang Dynasty, this part is divided into two aspects: the advantages and limitations of the dissolution of marriage in Tang Dynasty. The advancement and rationality of marriage dissolution in Tang Dynasty are embodied not only in thought, but also in legislative technology. For example, the system of separation from marriage should be the system that the marriage law tradition of Tang Dynasty has the greatest influence on the later generations, which gives both husband and wife full freedom of choice and has a positive influence on the society. The limitation of marriage dissolution in Tang Dynasty includes the limitation of legislation thought and the imperfection of legislation content. For example, there is no special institution for the dissolution of marriage, and the legal responsibility for dissolution of marriage is usually supplemented by criminal punishment as the main civil punishment and so on. In summary, the author thinks that the special study of Tang Dynasty law is of profound significance to us to better understand and learn from the traditional legal system, and also hopes to discuss the theory and practical significance of the dissolution system of marriage in Tang Dynasty to the modern marriage system.
【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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