清代義絕離婚法律制度研究
發(fā)布時間：2018-11-03 08:31
【摘要】：中國古代離婚制度主要包括七出、義絕、和離和違律婚斷離等,而義絕是指夫妻雙方或一方及其近親屬之間相互實施了法定的某些損害夫妻之間恩義關(guān)系的行為,經(jīng)官府認定并判決夫妻關(guān)系斷絕的一種離婚制度。義絕作為一項非常有特色的離婚制度,形成于唐代,至清末時廢除,是中國古代法制與禮制結(jié)合的典范。本文通過對義絕離婚制度的思想基礎(chǔ)與歷史沿革進行考察,探究清代義絕制度的法律規(guī)定及其在司法實踐中的運行狀況,進一步分析清代義絕離婚制度的特點及其發(fā)生變化的原因,以期對現(xiàn)行婚姻法中離婚制度的設(shè)計有所裨益。本文主要分為四個部分:第一部分,義絕離婚法律制度的思想基礎(chǔ)與歷史沿革。在中國古代,義絕離婚制度最初以一種禮制的理論被提出來,在漢代時成為當(dāng)時社會普遍承認的一種思想理論,后自唐時入律,成為具體的、具有可操作性的法律規(guī)范。本章對義絕制度思想基礎(chǔ)的考察以及對清代以前義絕制度演進過程的梳理,對后文中清代義絕離婚制度的研究具有重要意義。第二部分,清代律例中的義絕離婚法律制度。清代義絕制度的概念與前代相比并無太大區(qū)別,但《大清律例》中有關(guān)義絕的法律規(guī)定,與唐宋律相比變的比較零散,甚至有些學(xué)者認為清代律例中的義絕制度與唐宋律相比已經(jīng)發(fā)生了實質(zhì)性的變化。本章通過對清代律例中的義絕離婚制度進行梳理,并從人身與財產(chǎn)兩方面對清代律例中義絕離婚的法律后果進行研究,力求對清代義絕制度在律例中的規(guī)定有全面的認識。第三部分,清代司法實踐中的義絕離婚法律制度。本章通過《大清律例》"干名犯義"條小注中對義絕行為的列舉,將清代義絕行為按男女主體的不同,分為妻子一方犯義絕與丈夫一方犯義絕兩大類義絕情形,并結(jié)合對《刑案匯覽》三編、《刑部比照加減成案》等清代刑部檔案資料中有關(guān)義絕判例的考察,對上述兩大類義絕制度在具體司法實踐中的運行情況進行分析,并探討義絕制度在司法實踐與法律規(guī)定上的區(qū)別。第四部分,清代義絕離婚法律制度的特點及價值。本章以第三部分收集的案例為依據(jù),對清代義絕離婚制度的類型、量刑、強制性及從中反映出來的法律觀念進行了梳理分析,并在此基礎(chǔ)上探究清代義絕制度發(fā)生變化的原因,了解當(dāng)時的經(jīng)濟、文化、倫理觀念等對義絕制度產(chǎn)生的影響。并通過對現(xiàn)行婚姻法中離婚制度的思考,力求發(fā)掘出清代義絕離婚制度在我國當(dāng)下存在的價值,對如何有效借鑒義絕離婚制度中的合理成分,改善現(xiàn)行婚姻法中不完善的部分提出初步建議。
[Abstract]:In ancient China, the divorce system mainly included seven kinds of divorce, such as divorce, divorce and disobedient marriage and divorce, which means that the spouses or one party and their close relatives carried out some legal acts that impair the relationship between husband and wife. A system of divorce recognized by the government and decided to sever the relationship between husband and wife. As a characteristic divorce system, Yijie was formed in the Tang Dynasty and abolished in the late Qing Dynasty, which is the model of the combination of legal system and ritual system in ancient China. Based on the investigation of the ideological basis and historical evolution of the system, this paper probes into the legal provisions of the system and its operation in judicial practice in the Qing Dynasty. This paper further analyzes the characteristics of the divorce system in the Qing Dynasty and the reasons for its change in order to benefit the design of the divorce system in the current marriage law. This paper is divided into four parts: the first part, the ideological basis and historical evolution of the legal system of absolute divorce. In ancient China, the system of absolute divorce was first put forward as a theory of etiquette, and it became a kind of thought theory universally recognized by the society in the Han Dynasty, and it became a concrete and operable legal norm from the Tang Dynasty to the law. This chapter examines the ideological basis of the system of righteousness exclusion and combs the evolution of the system before the Qing Dynasty, which is of great significance to the study of the system of divorce in the Qing Dynasty. The second part, the legal system of divorce in Qing Dynasty. The concept of the system of righteousness exclusion in Qing Dynasty was not much different from that of the previous dynasties, but the legal provisions concerning the denial of righteousness in the Qing Dynasty were scattered in comparison with the laws of the Tang and Song dynasties. Some scholars even think that the system of absolute righteousness in Qing Dynasty has changed substantially compared with the laws of Tang and Song dynasties. This chapter combs the system of absolute divorce in the Qing Dynasty, and studies the legal consequences of the divorce in the Qing Dynasty from the aspects of person and property, and tries to have a comprehensive understanding of the provisions of the law of the Qing Dynasty. The third part, the legal system of judicial practice in Qing Dynasty. In this chapter, by enumerating the behavior of denial of righteousness in the note of "the law of the Qing Dynasty", according to the difference of the subjects of men and women, the behavior of disuse of justice in Qing Dynasty can be divided into two categories: one of the wife and the other of the husband. In combination with the investigation of the relevant judicial precedents in the archives of the Qing Dynasty, such as "Summary of Criminal cases", "introduction of Criminal cases", "the Ministry of Criminal punishment", and "the Ministry of punishment", and so on, the operation of the above two categories of the system in specific judicial practice is analyzed. It also discusses the differences between judicial practice and legal provisions. The fourth part, the characteristics and value of the legal system of absolute divorce in Qing Dynasty. Based on the cases collected in the third part, this chapter combs and analyzes the types, sentencing, compulsion and legal concepts reflected in the system of divorce in the Qing Dynasty, and on this basis probes into the reasons for the change of the system of absolute divorce in the Qing Dynasty. Understand the influence of economy, culture, ethics and so on the system of denial of justice. Through the thinking of divorce system in the current marriage law, the author tries to find out the value of the divorce system in the Qing Dynasty, and how to draw lessons from the reasonable elements of the divorce system effectively. A preliminary proposal is made to improve the imperfect part of the current marriage law.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2017
【分類號】：D929
本文編號：2307259
[Abstract]:In ancient China, the divorce system mainly included seven kinds of divorce, such as divorce, divorce and disobedient marriage and divorce, which means that the spouses or one party and their close relatives carried out some legal acts that impair the relationship between husband and wife. A system of divorce recognized by the government and decided to sever the relationship between husband and wife. As a characteristic divorce system, Yijie was formed in the Tang Dynasty and abolished in the late Qing Dynasty, which is the model of the combination of legal system and ritual system in ancient China. Based on the investigation of the ideological basis and historical evolution of the system, this paper probes into the legal provisions of the system and its operation in judicial practice in the Qing Dynasty. This paper further analyzes the characteristics of the divorce system in the Qing Dynasty and the reasons for its change in order to benefit the design of the divorce system in the current marriage law. This paper is divided into four parts: the first part, the ideological basis and historical evolution of the legal system of absolute divorce. In ancient China, the system of absolute divorce was first put forward as a theory of etiquette, and it became a kind of thought theory universally recognized by the society in the Han Dynasty, and it became a concrete and operable legal norm from the Tang Dynasty to the law. This chapter examines the ideological basis of the system of righteousness exclusion and combs the evolution of the system before the Qing Dynasty, which is of great significance to the study of the system of divorce in the Qing Dynasty. The second part, the legal system of divorce in Qing Dynasty. The concept of the system of righteousness exclusion in Qing Dynasty was not much different from that of the previous dynasties, but the legal provisions concerning the denial of righteousness in the Qing Dynasty were scattered in comparison with the laws of the Tang and Song dynasties. Some scholars even think that the system of absolute righteousness in Qing Dynasty has changed substantially compared with the laws of Tang and Song dynasties. This chapter combs the system of absolute divorce in the Qing Dynasty, and studies the legal consequences of the divorce in the Qing Dynasty from the aspects of person and property, and tries to have a comprehensive understanding of the provisions of the law of the Qing Dynasty. The third part, the legal system of judicial practice in Qing Dynasty. In this chapter, by enumerating the behavior of denial of righteousness in the note of "the law of the Qing Dynasty", according to the difference of the subjects of men and women, the behavior of disuse of justice in Qing Dynasty can be divided into two categories: one of the wife and the other of the husband. In combination with the investigation of the relevant judicial precedents in the archives of the Qing Dynasty, such as "Summary of Criminal cases", "introduction of Criminal cases", "the Ministry of Criminal punishment", and "the Ministry of punishment", and so on, the operation of the above two categories of the system in specific judicial practice is analyzed. It also discusses the differences between judicial practice and legal provisions. The fourth part, the characteristics and value of the legal system of absolute divorce in Qing Dynasty. Based on the cases collected in the third part, this chapter combs and analyzes the types, sentencing, compulsion and legal concepts reflected in the system of divorce in the Qing Dynasty, and on this basis probes into the reasons for the change of the system of absolute divorce in the Qing Dynasty. Understand the influence of economy, culture, ethics and so on the system of denial of justice. Through the thinking of divorce system in the current marriage law, the author tries to find out the value of the divorce system in the Qing Dynasty, and how to draw lessons from the reasonable elements of the divorce system effectively. A preliminary proposal is made to improve the imperfect part of the current marriage law.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2017
【分類號】：D929
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