英國舊濟貧法中私生子救濟問題探析
發(fā)布時間：2018-09-14 18:15
【摘要】：私生子指的是“生于合法婚姻之外的孩子”,他們經(jīng)常與婚外性關(guān)系聯(lián)系在一起,自中世紀(jì)起他們就受到社會道德輿論的指責(zé),被拋棄在主流社會之外,反映在英國普通法上也是如此,英國普通法對私生子甚為苛刻,他們不是任何人的孩子,沒有繼承權(quán),不能擔(dān)任高級職務(wù)。他們是“有罪”的,一出生就可能被拋棄,生存下來的可能性較低,即使生存下來也備受冷落,往往掙扎在生死的邊緣,與貧困聯(lián)系在一起。英國從伊麗莎白時期起開始了政府立法,延續(xù)中世紀(jì)教會法的救濟功能,為貧困的人和弱者提供社會救濟,私生子也被納入救濟的范圍,直到現(xiàn)代英國建立起了比較完善的私生子救濟制度,其中從舊濟貧法到新濟貧法改革是私生子救濟制度的重大變革階段,這一變革與舊濟貧法中的救濟問題密切相關(guān)。本文試圖從舊濟貧法本身問題出發(fā),通過梳理私生子救濟制度發(fā)展的歷史,在此基礎(chǔ)上分析私生子救濟中確實存在的問題,認(rèn)識新濟貧法關(guān)于私生子條款改革的意義。筆者在前言部分主要介紹國內(nèi)外學(xué)術(shù)界對這一問題的研究現(xiàn)狀和本課題研究的目的和意義。文章主體將分三章對舊濟貧法中的私生子救濟問題進行敘述：第一章簡述中世紀(jì)私生子救濟問題的起源。教會法和英國普通法都把私生子定義為“生于合法婚姻之外的孩子”,但由于管轄領(lǐng)域的不同,在私生子的判定上也存在分歧。英國普通法對私生子態(tài)度嚴(yán)苛,私生子需要救濟,教會法承擔(dān)起對私生子的救濟責(zé)任。第二章介紹近代以來舊濟貧法中私生子救濟條款的內(nèi)容和私生子救濟的一般過程,從私生子救濟條款和救濟過程中,我們可以看到舊濟貧法中私生子救濟體系是以教區(qū)為單位,以父親為核心的救助體系。第三章聯(lián)系當(dāng)時的社會發(fā)展背景,闡述并分析舊濟貧法中私生子救濟過程中存在的問題。一是生父確認(rèn)程序。在生父確認(rèn)的法庭中,母親有指認(rèn)私生子生父的權(quán)利,在濟貧的指揮棒下,濟貧監(jiān)察官、生父的選擇權(quán)甚小,母親方面的法律空間有待填補。二是教區(qū)對私生子及其母親的救濟。教區(qū)對母親及其私生子的救濟呈現(xiàn)出各個地區(qū)不平衡的現(xiàn)象,私生子母親得到的救濟金多少很大程度上取決于濟貧監(jiān)察官,她們在這一過程中會采取一定的策略。三是濟貧院中對私生子的救濟。私生子出生率高、死亡率高的狀況引起了有關(guān)人員的重視,濟貧院的條件經(jīng)歷了從一開始不利于私生子成長到漸漸有利于私生子的轉(zhuǎn)變,這一轉(zhuǎn)變使得濟貧稅變得越來越沉重。通過上述分析,得出舊濟貧法中私生子救濟體系的主要問題是私生子母親責(zé)任的缺失。第四章聯(lián)系新濟貧法改革的背景,展示1834年新濟貧法關(guān)于私生子條款的內(nèi)容,強調(diào)母親在法律上要承擔(dān)撫養(yǎng)私生子的義務(wù)。結(jié)論綜合前三章的闡釋與分析,得出結(jié)論：1834年新濟貧法強調(diào)母親法律上、經(jīng)濟上對私生子的撫養(yǎng)責(zé)任是完善制度建設(shè)的需要,也是社會變化的反映。在這一變革中,私生子漸漸納入早期兒童立法的范圍,為解決私生子的權(quán)利問題奠定了基礎(chǔ)。
[Abstract]:Illegitimate children refer to "children born outside a lawful marriage". They are often associated with extramarital sexual relations. Since the Middle Ages, they have been criticized by social and moral public opinion and abandoned outside the mainstream society. This is reflected in the British common law, which is very harsh on illegitimate children. They are not anyone's. Children, without the right of inheritance, cannot hold high office. They are "guilty" and can be abandoned at birth. They are less likely to survive. Its relief function provided social relief for the poor and the weak, and illegitimate children were included in the scope of relief. Up to the establishment of a relatively perfect relief system for illegitimate children in modern Britain, the reform from the old law of relief to the new law of relief was a major stage of change in the relief system for illegitimate children, which was closely related to the relief problems in the old law of relief for the poor. This article attempts to start from the problems of the old poverty relief law itself, through combing the history of the development of the illegitimate child relief system, on the basis of this analysis of the problems in the illegitimate child relief, to understand the significance of the new poverty relief law on the reform of the illegitimate child clause. The first chapter gives a brief account of the origin of the problem of illegitimate child relief in the Middle Ages. Church law and British common law both define illegitimate child as "a child born out of a lawful marriage", but because of different jurisdictions, There are also differences in the judgment of illegitimate children. The common law of Britain has a strict attitude towards illegitimate children, illegitimate children need relief, and the church law assumes the responsibility of relief for illegitimate children. We can see that the relief system of illegitimate children in the old law of poverty relief is a relief system with the parish as the unit and the father as the core. Chapter 3, connecting with the social development background at that time, elaborates and analyzes the problems in the relief process of illegitimate children in the old law of poverty relief. Under the command of poverty relief, the right of paternity is very small, and the legal space for mothers needs to be filled. Second, the parish relief for illegitimate children and their mothers. Third, the relief of illegitimate children in the workhouse. The high birth rate and mortality rate of illegitimate children have aroused the attention of the people concerned. The conditions in the workhouse have changed from being unfavorable to the growth of illegitimate children to being favorable to illegitimate children. Through the above analysis, it is concluded that the main problem of the relief system for illegitimate children in the old poverty relief law is the absence of mother's responsibility for illegitimate children. Chapter four, in connection with the background of the reform of the new poverty relief law, shows the contents of the provisions on illegitimate children in the new poverty relief law of 1834, and emphasizes that mothers should bear the responsibility of raising illegitimate children legally. ConclusionBased on the interpretation and analysis of the first three chapters, it is concluded that the New Poverty Relief Law of 1834 emphasizes that the legal and economic responsibility for the maintenance of illegitimate children is the need to improve the system construction and the reflection of social changes. Lay the foundation for profit.
【學(xué)位授予單位】：南京大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2015
【分類號】：K561
本文編號：2243489
[Abstract]:Illegitimate children refer to "children born outside a lawful marriage". They are often associated with extramarital sexual relations. Since the Middle Ages, they have been criticized by social and moral public opinion and abandoned outside the mainstream society. This is reflected in the British common law, which is very harsh on illegitimate children. They are not anyone's. Children, without the right of inheritance, cannot hold high office. They are "guilty" and can be abandoned at birth. They are less likely to survive. Its relief function provided social relief for the poor and the weak, and illegitimate children were included in the scope of relief. Up to the establishment of a relatively perfect relief system for illegitimate children in modern Britain, the reform from the old law of relief to the new law of relief was a major stage of change in the relief system for illegitimate children, which was closely related to the relief problems in the old law of relief for the poor. This article attempts to start from the problems of the old poverty relief law itself, through combing the history of the development of the illegitimate child relief system, on the basis of this analysis of the problems in the illegitimate child relief, to understand the significance of the new poverty relief law on the reform of the illegitimate child clause. The first chapter gives a brief account of the origin of the problem of illegitimate child relief in the Middle Ages. Church law and British common law both define illegitimate child as "a child born out of a lawful marriage", but because of different jurisdictions, There are also differences in the judgment of illegitimate children. The common law of Britain has a strict attitude towards illegitimate children, illegitimate children need relief, and the church law assumes the responsibility of relief for illegitimate children. We can see that the relief system of illegitimate children in the old law of poverty relief is a relief system with the parish as the unit and the father as the core. Chapter 3, connecting with the social development background at that time, elaborates and analyzes the problems in the relief process of illegitimate children in the old law of poverty relief. Under the command of poverty relief, the right of paternity is very small, and the legal space for mothers needs to be filled. Second, the parish relief for illegitimate children and their mothers. Third, the relief of illegitimate children in the workhouse. The high birth rate and mortality rate of illegitimate children have aroused the attention of the people concerned. The conditions in the workhouse have changed from being unfavorable to the growth of illegitimate children to being favorable to illegitimate children. Through the above analysis, it is concluded that the main problem of the relief system for illegitimate children in the old poverty relief law is the absence of mother's responsibility for illegitimate children. Chapter four, in connection with the background of the reform of the new poverty relief law, shows the contents of the provisions on illegitimate children in the new poverty relief law of 1834, and emphasizes that mothers should bear the responsibility of raising illegitimate children legally. ConclusionBased on the interpretation and analysis of the first three chapters, it is concluded that the New Poverty Relief Law of 1834 emphasizes that the legal and economic responsibility for the maintenance of illegitimate children is the need to improve the system construction and the reflection of social changes. Lay the foundation for profit.
【學(xué)位授予單位】：南京大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2015
【分類號】：K561
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相關(guān)期刊論文 前2條
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2 呂曉燕;;從漢韋法令看近代英國的兒童福利立法[J];學(xué)習(xí)與實踐;2011年10期
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