Sun Guanglan, Law School

Abstract: The period of the Beiyang government was an important period of social change. At that time, there were some changes in the marriage system. The marriage system at that time was very traditional. The divorce law basically followed the old laws of the Qing Dynasty and maintained the patriarchal system of the traditional feudal ethics. From the judicial point of view, the Dali Court not only seeks to maintain the Chinese civil law tradition, but also gradually modernizes it, and has achieved good transition results in divorce cases. The reform of Dali is mainly based on the case law and interpretation examples of Dali. Therefore, in order to study the women's right to divorce at that time, we must first analyze the relevant jurisprudence and interpretation of the Supreme Court. By expanding women's reasons for divorce, including abuse, serious insult, adultery, malicious abandonment, male disability and bigamy, as well as by restricting men's right to divorce, the Dali strengthens the standard of recognition of "the wife is at large with her husband", and grants women the right to divorce compensation in divorce to protect women's right to divorce. However, at the same time, the Dali also restricted women's divorce rights, such as strict definition of divorce conditions, difficulty in obtaining evidence in divorce proceedings, and unequal rights of children's parents after divorce, which led to many changes in women's rights. Dali has a conservative attitude towards traditional compromise, but most importantly, it reflects the flexibility of Dali to adapt to the trend. The rise of divorce rate is a remarkable feature of social development during the period of the Beiyang government. For women, this is mainly because they gain more independence in economic life. Among the reasons for divorce, including abandonment, abuse, bigamy, buying and selling marriage, the vast majority of victims in divorce cases here are women, who often take the initiative to divorce because of oppression and humiliation. However, at that time, few women could not bear the persecution of their husbands and bravely proposed divorce. Women's desire to obtain independence and freedom through divorce had not yet been realized. Many women continue to choose to endure humiliation for various reasons. In the society at that time, women had the right to divorce, but this phenomenon of having the right but not exercising the right was closely related to the special historical background of the Beiyang government. The social reality made them have to choose to compromise when facing an unhappy marriage. The increase of divorce cases was a feature of the society at that time, which was obviously related to the level of economic development, the impact of Western civilization and the level of education of the people at that time. Feudal ethical concepts, such as three obediences and four virtues, son preference. Men are still superior to women in modern times, and the traditional concept of women isdeeply rooted. The imbalance and incompleteness of modern China's social transformation have brought difficulties to women's employment rate and political status. Unequal access to education makes many rural women ignorant and backward. Modern women, especially rural women, are not economically independent and lack the right to participate in politics, which will inevitably be reflected in marriage. Perhaps this is the fundamental reason why the old marriage system is still implemented everywhere. Although there were unified laws and regulations during the period of Beiyang rule, facing the "guardian" of male rights, many local forces often intervened in judicial activities, and women's right to divorce was also damaged, and laws were often in vain. The change of women's divorce law during the Beiyang government period reflects the change of traditional marriage system under the new historical background. The emergence and development of Chinese capitalism, the change of social concepts, the development of women's education and the continuous development and improvement of the legal system have all changed the divorce rights of women in the Beiyang period more or less, but there are difficulties and contradictions in the process of transition from the traditional divorce system to the modern divorce system, Only the progress of the whole society and the improvement of women's political and economic status can realize women's desire to realize their right to divorce through legal means. The modernization of civil law is a gradual process, which cannot be achieved overnight, and it can never be achieved through a single legislation. In the process of legal modernization, the modernization of civil law is fundamental. Only when we have a clear understanding of the problem and a deep understanding of our own national culture and legal culture can we correctly identify the advantages and disadvantages of foreign legal resources. The modernization of China's legal system must be rooted in China's culture and traditional system.

Read the full article here:   民国初期女性离婚权问题研究（1912-1927）.pdf