清代义绝离婚法律制度研究
发布时间：2018-11-03 08:31
【摘要】：中国古代离婚制度主要包括七出、义绝、和离和违律婚断离等,而义绝是指夫妻双方或一方及其近亲属之间相互实施了法定的某些损害夫妻之间恩义关系的行为,经官府认定并判决夫妻关系断绝的一种离婚制度。义绝作为一项非常有特色的离婚制度,形成于唐代,至清末时废除,是中国古代法制与礼制结合的典范。本文通过对义绝离婚制度的思想基础与历史沿革进行考察,探究清代义绝制度的法律规定及其在司法实践中的运行状况,进一步分析清代义绝离婚制度的特点及其发生变化的原因,以期对现行婚姻法中离婚制度的设计有所裨益。本文主要分为四个部分:第一部分,义绝离婚法律制度的思想基础与历史沿革。在中国古代,义绝离婚制度最初以一种礼制的理论被提出来,在汉代时成为当时社会普遍承认的一种思想理论,后自唐时入律,成为具体的、具有可操作性的法律规范。本章对义绝制度思想基础的考察以及对清代以前义绝制度演进过程的梳理,对后文中清代义绝离婚制度的研究具有重要意义。第二部分,清代律例中的义绝离婚法律制度。清代义绝制度的概念与前代相比并无太大区别,但《大清律例》中有关义绝的法律规定,与唐宋律相比变的比较零散,甚至有些学者认为清代律例中的义绝制度与唐宋律相比已经发生了实质性的变化。本章通过对清代律例中的义绝离婚制度进行梳理,并从人身与财产两方面对清代律例中义绝离婚的法律后果进行研究,力求对清代义绝制度在律例中的规定有全面的认识。第三部分,清代司法实践中的义绝离婚法律制度。本章通过《大清律例》"干名犯义"条小注中对义绝行为的列举,将清代义绝行为按男女主体的不同,分为妻子一方犯义绝与丈夫一方犯义绝两大类义绝情形,并结合对《刑案汇览》三编、《刑部比照加减成案》等清代刑部档案资料中有关义绝判例的考察,对上述两大类义绝制度在具体司法实践中的运行情况进行分析,并探讨义绝制度在司法实践与法律规定上的区别。第四部分,清代义绝离婚法律制度的特点及价值。本章以第三部分收集的案例为依据,对清代义绝离婚制度的类型、量刑、强制性及从中反映出来的法律观念进行了梳理分析,并在此基础上探究清代义绝制度发生变化的原因,了解当时的经济、文化、伦理观念等对义绝制度产生的影响。并通过对现行婚姻法中离婚制度的思考,力求发掘出清代义绝离婚制度在我国当下存在的价值,对如何有效借鉴义绝离婚制度中的合理成分,改善现行婚姻法中不完善的部分提出初步建议。
[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.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D929
本文编号：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.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D929
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