中国古代法上的和离
崔兰琴中国古代法上的和离
Divorce by Agreement in Ancient Chinese Law
期刊名称：《法学研究》
期刊年份：
作者：崔兰琴
单位：浙江工商大学法学院
中文关键词：和离;唐律;七出与义绝
英文关键词：divorce by agreement;He Li;Tang Code;Qi Chu;Yi Jue
中文摘要：
和离指夫妻双方因情意不协而自愿离婚的制度，它与七出、义绝共同构成中国古代法上的离婚制度。和离之制渊源于《周礼》，自唐代始进入法典，形成正式制度，后代基本相沿不变。该制强调婚姻的两相情愿，不受外力强制的特性。它广泛应用于一般民众，但对宗室成员和官员有不同程度的限制。考察现有案例可见，和离之法对保护女方平等的离婚意愿及女方的财产都有一定价值，但司法过程中表现出的对女方离婚诉求的抑制也反映出中国古代礼法结合、维护家族利益的特点。
英文摘要：
There are various divorce systems in ancient China, such as Qi Chu, Yi Jue, etc. Among them, He Li (divorce by agreement) is the system that the couples choose to divorce when their feelings are inharmonious. He Li system originated from Zhou Li. It became a formal system in the Tang Dynasty and was inherited by later dynasties. As a supplement to the divorce systems of Qi Chu and Yi Jue, He Li takes the couples’divorce willingness into consideration, emphasizes mutual responsibility between husband and wife, and excludes external pressures.Generally speaking, in ancient China, it was more common for the husband to require divorce by way of He Li than the wife to do so and the purpose of husband can be reached easily. In contrast, when the wife wished to terminate the marriage relationship, the result depended to a great extent on whether the divorce reason of the wife met the request of Confucianism. As for royalties and officials, there were different limits when they choose to divorce by way of He Li. He Li system had certain value on protecting the wife’s divorce will and her own property. It put emphasis on the relationship between the couple, regarded both husband and wife as equal subject and admitted that either partner has right to divorce when their affection is inharmonious. Later, it also tended to allow the wife to take away her own dowry. From the perspective of social development, He Li system satisfied the requirement of the progress of marriage life itself. At the same time, it also provides system design and legal culture tradition for modern consensus divorce. He Li system arised in the Confucianist mainstream consciousness of gender roles orientation and the traditional society of tiny-scale peasant economy, thus was subjected to many restrictions embodying various characteristics of ancient society. In order to maintain the family stability of the small-scale peasant economy and the sustainable development of social reproduction, the country not only implemented the policy of divorce restriction, but also limited the divorce appeals of the wife. By the same token, the limitations on imperial clans and officials in their divorce by way of He Li aimed to exert their exemplary role in the maintenance of marriage ethics and social morals.
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