英国旧济贫法中私生子救济问题探析
发布时间：2018-09-14 18:15
【摘要】：私生子指的是“生于合法婚姻之外的孩子”,他们经常与婚外性关系联系在一起,自中世纪起他们就受到社会道德舆论的指责,被抛弃在主流社会之外,反映在英国普通法上也是如此,英国普通法对私生子甚为苛刻,他们不是任何人的孩子,没有继承权,不能担任高级职务。他们是“有罪”的,一出生就可能被抛弃,生存下来的可能性较低,即使生存下来也备受冷落,往往挣扎在生死的边缘,与贫困联系在一起。英国从伊丽莎白时期起开始了政府立法,延续中世纪教会法的救济功能,为贫困的人和弱者提供社会救济,私生子也被纳入救济的范围,直到现代英国建立起了比较完善的私生子救济制度,其中从旧济贫法到新济贫法改革是私生子救济制度的重大变革阶段,这一变革与旧济贫法中的救济问题密切相关。本文试图从旧济贫法本身问题出发,通过梳理私生子救济制度发展的历史,在此基础上分析私生子救济中确实存在的问题,认识新济贫法关于私生子条款改革的意义。笔者在前言部分主要介绍国内外学术界对这一问题的研究现状和本课题研究的目的和意义。文章主体将分三章对旧济贫法中的私生子救济问题进行叙述：第一章简述中世纪私生子救济问题的起源。教会法和英国普通法都把私生子定义为“生于合法婚姻之外的孩子”,但由于管辖领域的不同,在私生子的判定上也存在分歧。英国普通法对私生子态度严苛,私生子需要救济,教会法承担起对私生子的救济责任。第二章介绍近代以来旧济贫法中私生子救济条款的内容和私生子救济的一般过程,从私生子救济条款和救济过程中,我们可以看到旧济贫法中私生子救济体系是以教区为单位,以父亲为核心的救助体系。第三章联系当时的社会发展背景,阐述并分析旧济贫法中私生子救济过程中存在的问题。一是生父确认程序。在生父确认的法庭中,母亲有指认私生子生父的权利,在济贫的指挥棒下,济贫监察官、生父的选择权甚小,母亲方面的法律空间有待填补。二是教区对私生子及其母亲的救济。教区对母亲及其私生子的救济呈现出各个地区不平衡的现象,私生子母亲得到的救济金多少很大程度上取决于济贫监察官,她们在这一过程中会采取一定的策略。三是济贫院中对私生子的救济。私生子出生率高、死亡率高的状况引起了有关人员的重视,济贫院的条件经历了从一开始不利于私生子成长到渐渐有利于私生子的转变,这一转变使得济贫税变得越来越沉重。通过上述分析,得出旧济贫法中私生子救济体系的主要问题是私生子母亲责任的缺失。第四章联系新济贫法改革的背景,展示1834年新济贫法关于私生子条款的内容,强调母亲在法律上要承担抚养私生子的义务。结论综合前三章的阐释与分析,得出结论：1834年新济贫法强调母亲法律上、经济上对私生子的抚养责任是完善制度建设的需要,也是社会变化的反映。在这一变革中,私生子渐渐纳入早期儿童立法的范围,为解决私生子的权利问题奠定了基础。
[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.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：K561
本文编号：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.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：K561
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1 周文英;工业革命时期英国卫斯理宗(1740-1840)[J];暨南学报(哲学社会科学);2000年05期
2 吕晓燕;;从汉韦法令看近代英国的儿童福利立法[J];学习与实践;2011年10期
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