【作者】 潘大礼；

【导师】 刘伟；

【作者基本信息】 华中师范大学 ， 中国近现代史， 2011， 博士

【摘要】 婚姻冲突既是一种社会现象,也是一种法律现象。不仅在传统社会,而且在当今,都是一个关注度较广的社会问题。研究婚姻冲突,对于了解民众日常生活的情况,进而推动社会史向前发展,都具有十分重要的历史与现实意义。婚姻冲突的产生是多种因素综合作用的结果,其贯穿于婚姻缔结到解体的整个过程,同时具有历史的延续性。在传统社会里,婚姻观念和婚姻礼制均与婚姻冲突有着密切的联系,而法律制度则成为婚约冲突的控制机制,并随着历史的发展而愈复杂化。在近代中国,一方面传统的婚姻体系还具有强大的生命力,另一方面西方新式婚姻观念、司法制度的引入,使得二者之间发生激烈的碰撞,婚姻冲突在所难免。近代湖北社会的地理位置、气候、经济、司法与风俗习惯等背景与民国三四十年代的婚姻冲突均有密切的联系。婚约是男女将来以结婚为目的的契约,传统社会的婚约不仅讲究“父母之命,媒妁之言”,而且还要具有婚书或聘财。近代湖北社会的婚约具有传统订婚习俗的延续和新式订婚习俗的兴起两大时代特点,深受近代社会转型的历史影响。对解决婚约纠纷的制度设计,传统与近代有很大的差别性,分别表现在侧重于家族主义和个人主义两个方面。在民国三四十年代的湖北社会,按照婚约纠纷当事人所要达成的目的,可将其分为婚约无效、解除婚约、婚约有效和撤销婚约四种类型。婚约冲突发生的诉讼地点以经济较为发达或者离中心城市较近的地区,当事人的居住地则以乡下为主。与抗日战争时期相比,解放战争时期是发生婚约冲突较为集中的阶段,1946、1947、1948为婚约冲突发生最多的三年。从月份来看,4、5、9、12等月份,从季节看,春季是发生婚约冲突最多的时候。婚约冲突当事人男女诉讼年龄,均以20-25岁为主,女性订婚年龄要早于男性。家长包办、订婚一方当事人病故及聘礼等因素,是发生婚约纠纷的三大主因。重婚是指有妻娶妻或有夫嫁夫的现象,违反了“一夫一妻制”原则。在传统社会里,由于“妾”在家庭中对“妻”并不构成威胁,因此纳妾并非重婚行为。传统社会对重婚是禁止的,并通过相应的法律制度加以约束,司法机构也能够做到依法审判,但是由于道德、风俗习惯等因素的影响,重婚现象并不能完全禁止。民国三四十年代湖北的重婚行为,从起诉人的性别看,以丈夫为主,表明妻子发生重婚行为的比例较大。重婚诉讼的处理方面主要有起诉判决、不起诉和不明三种。重婚案件发生的时间段以1946和1947两年为主体,提起诉讼请求的季节以春季最多,其次是秋季,冬季最少。发生重婚行为的夫妻年龄仍以男大女为多数,婚后五年是发生重婚行为最多的时间段。重婚行为当事人以本地人为主,所从事的职业大多属于下层社会范围。妻子发生重婚行为的原因主要有：丈夫外出不归、家庭生活困难、家庭暴力等方面,丈夫发生重婚行为的原因主要有妻子无生育能力、妻子背夫潜逃或者借口妻子去世等因素。通奸在传统社会被称为“和奸”,是男女当事人自愿发生的性行为。通奸在传统社会是经常发生的现象,通奸当事人的年龄、婚姻、职业、关系等方面均有不同的内容与特点,通奸的原因主要是经济因素与情欲因素两种。传统社会试图通过宣扬贞节观念和司法实践等手段,控制通奸行为的发生。民国三四十年代的湖北通奸案件,从告诉人性别划分看,女性发生通奸行为的比例大于男性。通奸案件的诉讼结果主要有判处刑罚(包括缓刑)、被告无罪、和撤诉(不受理)三类。在案件当事人的年龄方面,丈夫大于妻子是普遍现象。婚后5-10年是通奸行为的高发期,男性在30-40岁,女性在20-30岁区间容易发生通奸行为。通奸告诉人与被告人均以武汉地区为主,省内及省外籍贯者次之。从通奸男、女双方当事人观察,从事商业经营的人较多。丈夫久出不归、丈夫不顾妻子生活、夫妻分居、家庭矛盾、自身作风等因素是女性发生通奸行为的主要原因；因职务之便、空间之便、妻子无生育能力等因素是男性发生通奸行为的主要原因。遗弃主要是指抛弃应该赡养或抚养的亲属及他人的行为,本文主要侧重于夫妻之间的遗弃行为。孝的观念虽然体现在子女对家长的孝顺方面,然而在男尊女卑的传统社会,妻子对丈夫的忠节也是孝的内涵,因而从传统社会到民国政府,均从法律制度方面对遗弃行为作了惩罚性规定。在民国三四十年代的湖北社会,遗弃行为以丈夫遗弃妻子者居多。时间上,抗战时期是发生遗弃行为的多发期。遗弃案件的处理结果主要有起诉并审判、不起诉和不受理、撤销起诉、情况不详等四种。遗弃行为当事人年龄,以男方年龄大于女方为主,年龄差在5岁以内。男方30岁以后,最易遗弃女方,而女方在35岁之前容易遭受遗弃,婚后十年是夫妻之间发生遗弃行为的多发期。男方当事人从事商业和担任政府职员的较多,女方则多是从事帮工、理家等职业,双方差距明显。与人姘居、受他人唆使等因素是女方遗弃男方的主要原因,感情、经济、家庭矛盾等因素成为男方遗弃女方的理由。离婚是夫妻关系解体的标志,传统社会的离婚类型主要有“七出”、“义绝”和“协离”三种,近代社会的厉害类型主要分为法定离婚和协议离婚两种。民国三四十年代湖北社会的离婚案件,主要发生在1946、1947和1948三年,发生的地点以武汉地区为最多。离婚案件的审级主要有一审、二审、三审、和解和不详五种,其中经过一、二两审的案件数量最多。在进入司法审判程序的离婚案件中,判处“不准离婚”的数量最多,反映了离婚诉讼多以失败而告终。在离婚案件当事人中,夫妻双方结婚年龄以25岁之前为多,妻子的数量大于丈夫。在年龄方面,丈夫年龄普遍大于妻子,5岁以内为主。婚后十年是离婚冲突的高发期。在离婚案件中,夫妻双方从事的职业,以农业生产者为最多,其次是从事商业买卖者。妻子与他人通奸、杀害丈夫、虐待夫方亲属、不治之恶疾等因素是丈夫提出离婚的原因,丈夫重婚、丈夫与他人通奸、受夫之虐待、不治之恶疾等因素成为妻子离婚的借口。民国三四十年代的湖北社会,家长代订子女婚约是常见的社会现象。然而,和传统社会不同的是,一旦女儿成人,她们会因为种种原因表达对父母主婚权的不满,对此婚约表示否认。如果因此发生婚约纠纷,不仅法律有明文规定,对家长代订婚约加以禁止,而且司法机构也能够在审理过程中给女方以支持。此时期的湖北社会,仍然处于历史的转型阶段,一方面传统家长式订婚权仍然存在,另一方面,子女特别是女儿对不满意的代订婚约能够表达出自己的看法,借助司法的力量对父母订婚权加以否定,将订婚权收归在自己手中。从该时期婚姻冲突的案例情况观察,在很多妇女的头脑中仍然固守着“依靠丈夫”这样的传统家庭伦理观念,使她们企图以“男尊女卑”的形式换取丈夫日常生活的抚养。一旦丈夫由于各种原因不具备这样的能力时,她们可能会选择遗弃、重婚或通奸等行为,目的是抛弃一个不能抚养她们日常生活的丈夫,进而选择另一个可以作为生活依靠的男人。妇女在面对婚姻问题时,可以自由提出离婚诉讼的请求,离婚权比传统社会有明显提高,但是其离婚的诉求却不是为了追求自由或平等,大多是为了生存,因为丈夫没有尽到养活妻子的责任。妇女的离婚自由权进入司法审判阶段,却不会轻易的给予实现,因为在战乱、贫穷的南京国民政府的时局之下,家庭稳定是社会现实的必然要求。本文以相关的司法档案为中心,通过法律社会史的路径,对民国三四十年代湖北社会的婚姻冲突进行研究。文章既对传统社会的婚姻冲突进行回顾和思考,也对民国三四十年代湖北婚姻冲突的案件进行细致解读和相互比较,同时对各类婚姻冲突的原因作了较为深入的论述。此外,在婚姻冲突的考察过程中,对妇女的订婚权、财产权和离婚权也进行了分析。更多还原

【Abstract】 Marital conflict is not only a social phenomenon, but also a legal phenomenon. It is a social problem that is widely concerned in both traditional society and in today’s times. Researching marital conflict is of great historical and practical significance for understanding the situation of people in everyday life and then moving forward to promote the development of social history,The production of marital conflict is the result of many factors, which runs through the whole process of the conclusion and the dissolution of marriage and has historical continuity. In traditional societies, the concept of marriage and marriage ritual and marital conflict are closely linked, and the legal system has become the control mechanism of conflict engagement, which has become more complicated with the development of history. In modern China, on the one hand, the traditional marriage system still has a strong vitality; on the other hand, the spread of the modern Western concept and the system of marriage make the violent collision between the two, so the marital conflict is inevitable. Modern Hubei social location, climate, economy, justice and customs and other backgrounds have a close relationship with the marrige conflict during the 30s and the 40s of the Repulic of China (1912-1949)Marriage aims at the future contract of marriage for men and women.In the traditional society, marriage is based on " dictates of parents and words of matchmakers "and the marriage certificate or weath. In Hubei Modern society the engagement is with two characteristics of the times:the continuity of the traditional marriage and the rise of the new customs, which is deeply affected by the modern history of social transformation.There is a great difference between the tradition and the modern times at the respect of the design of the system of marriage, which pay particular emphasisi on the family and individualism. In Hubei society during the 30s and 40s of the Republic of China, marriage parties in dispute in accordance with the purpose to be achieved,it can be divided into the marriage invalid, dissolution of marriage, marriage valid and revoked four types of marriage.The lawsuit of the marriage conflict takes place mostly in area with more developed economy or the region closer to the center of the city;the party dominated the country of residence. Compared with the period of the Anti-Japanese War, the period of the liberation war witnesses more conflict engagement, in which 1946,1947,1948 the marriage conflict occurrs the most. The marriage conflict occurrs the most in April, May, September and December and spring from the view of month and season respectively. The age of parties to the conflict between men and women vary mainly from 20 to 25; women are engaged earlier than men. Parents arranging the marriage,the dowry death of the deceased party and the betrothal presents are the main causes of occurrence of the marriage disputes. Bigamy is the phenomenon that a wife or a husband marries another husband or wife, in violation of "monogamy"principle. In traditional society, the "concubine" in the family does not pose a threat on the "wife", so concubinage is not bigamy. Bigamy is prohibited in the traditional society, and bounded through the appropriate legal system. The judiciary can also be tried according to law, but because of ethics, customs and other factors, the phenomenon is not a complete ban on polygamy.The polygamy in Hubei during the 30s and 40s of the Republic of China, from the prosecutor’s gender perspective, it is mainly the husband, which shows that a polygamous wife processes a larger percentage of occurrence. At the respect of the proceedings of the treatment of bigamy, there are the prosecution, no prosecution and the unknown. Bigamy cases occurrs chiefly in the period of 1946 and 1947 in which the main season of claim is spring, followed by autumn and winter the least. Age of occurrence of a polygamous husband and wife is that men are mostly older than women. A polygamous marriage takes place five years later after the marriage. The main parties to polygamous are local people and the occupation are mostly of lower-class range. The reasons for the wife’s bigamy are her husband out of no return, family difficulties, and family violence; the reasons for polygamous husbands are infertile wife, the wife abscond behind the husband’s back or excuse for his wife’s death and other factors.Adultery which is called "adultery" in traditional society is consensual sex between men and women clients. Adultery in traditional society is a recurring phenomenon. The age of the parties adultery, marriage, career, relationships, etc. have different contents and characteristics.The main reasons for adultery are the economic factor and the lust factor. The incidence of adultery is controlled by trying to promote traditional social values and judicial practice chastity and other means.The adultery cases in Hubei during the Republic of China, from sex aspect, the proportion of female adultery occurred more than men. Outcome of the litigation cases of adultery are penalties (including suspended sentence), the defendant not guilty, and withdrawal (will not be accepted) three. From the age in the case of the parties, it is a common phenomenon that the husband is older than the wife.5-10 years after marriage is the high incidence of adultery. Men aged 30-40 and women 20-30 years old are inclined to fornicate. The complainant and the defendant of adultery are mainly in Wuhan followed by the province and outside the province. From the adultery of men and women, more people are engaged in commercial operations.Husband for a long time out of no return, regardless of wives, husband and wife separated, family conflicts, their style and other factors are the main reasons for female adultery occurrence; for the conveneince of his position and the space, interfile wife are the principal reasons for the male adultery.Desertion refers to the behavior of abandoning the maintenance or support of relatives and other people that should have been taken care of. This paper focuses on the desertion between husband and wife. Although the concept of filial piety is reflected in their children’s filial respect for parents, but in the traditional patriarchal society, the wife of loyalty to her husband is the meaning of filial piety, and thus from a traditional society to the government of the Republic, provisions are made for the publishment of the desertion behaviour from the legal perspective. Hubei society during the Republic of China, mostly the husband abandonds the wife. The desertion occurrs frequently in the Anti-Japanese War. The results of abandoned cases are to prosecute and try, not to prosecute, not to be accepted, to quash an indictment, to be unknown, etc. Age of abandonment behavior of the parties is that men are older than women, the age difference less than 5 years old. Men after 30 years old are most likely to abandon women, while women before the age of 35 are vulnerable to abandonment. Desertion takes place frequently during the ten years after the marriage. Men occupy business and the government employee, while the woman is mostly engaged in the workers, homemaker and other professional. Therefore, the gap beteen the two is very obvious. What’s more, human cohabitation, instigated by others and other factors arethe main reasons for the wife abandoning the husband; the emotion, economy, and family conflicts and other factors become the reason for the man abandoning the woman.Divorce is a sign of marital dissolution. The types of divorce in the traditional society are "Qichu","justice must"and"co-away". The crucial types of divorce in modern society are divided into legal divorce and divorce by agreemnt. The divorce cases in Hubei society druing the Republic of China occurrs mainly in 1946,1947 and 1948, in Wuhan area as the most occurrence place. The trial of divorce cases are first or second instance, third instance, reconciliation and unknown, including the first and second as the largest number of cases.In the judicial process in divorce cases, the sentence "no divorce " is of the largest number which reflects the divorce proceedings end in failure.Parties in divorce cases, the majority of the couple marry before the age of 25 years.The number of the wife is more than that of the husband. In age, the husband is generally older than the wife,5 years of age based. A decade period after the marrige is of high conflict divorce. In divorce cases, the occupations of both spouses are the agricultural producers for the most, followed by those engaged in commercial transactions. His wife fornicating with others, murdering the husband, abusing the relatives of the husband, the incurable disease of the husband and other factors are the reasons for her husband to ask for divorce, while the husband’s bigamy, his fornicating with others, being ill treated, the incurable disease and other factors are the excuse for the wife to divorce.In Hubei society druing the Republic of China, it is a common social phenomenon that the parents set marriage on behalf of their children. However, unlike the traditional society, once the daughter has grown up, because of various reasons they expresse dissatisfaction with their parents who decide the marriage and deny the marriage. If this causes marriage disputes, not only the law prohibits the parents set marriage on behalf of their children, and the judiciary gives the woman support in the course of trial. Hubei society during this period, it is still in the history transformation stage. On the one hand the traditional patriarchal power is still engaged; on the other hand, children daughter in particular are not satisfied with the patriarchal power of engagement,express their views,and regain the engagement power with the help of justice to deny the engagement power of their parents.From the observation of the case of marital conflict situations during that period, there is still the traditional family ethic "rely on her husband"in the minds,so they attempt to gain support for the daily life of her husband in the terms of "male superiority". Once for various reasons her husband do not have such ability, they may choose abandonment, bigamy or adultery and other acts in order to abandon their her husband that can not support her daily life and then choose another man as lives dependance. In the face of marital problems, Women are free to ask for divorce and their right to divorce has risen markedly over the traditional society, but the demands of their divorce are not the pursuit of freedom or equality, mostly in order to survive, because their husbands do not take on the responsibility of caring for the wife. Women’s right of freedom of divorce will not easily be given to achieve at the trial stage, because family stability is a necessary requirement of social reality in war, poverty, under the current situation of Nanjing National Government,.This paper researches the marital conflict in Hubei community during the 30s and the 40s of the Republic of China with the relevant judicial files as the center, and through the path of law social history. This article not only reviews and ponders over the marital conflict in the traditional society, but also interpretates the marital conflict cases in Hunbei during the Republic of China in detail and compares them; meanwhile all kinds of reasons for marital conflict are deeply discussed. In addition,, the engagement of women’s rights, property rights and divorce rights are analyzed in the study of marital conflict.更多还原