History has repeatedly taught us that what we are accustomed to today is not easy to come by. For example, the concept of "equality between men and women" seems to us today as it is natural and has always been so. However, this is not the case in history. Professor Huang Zongzhi's new book, Code, Customs and Judicial Practice: A Comparison between the Qing Dynasty and the Republic of China, provides an in-depth examination of China's legal revision activities during the Qing and Republic of China, and shows us the tortuous process of the acceptance of "equality between men and women".
Equality
Text | Huang Zongzhi
For Chinese legal reformers in the early 20th century, equality between men and women was perhaps the most difficult of all the main organizing principles of the Germany Civil Code.
The slightest hint of this provoked opposition from Zhang Zhidong in 1906, and it was his and other officials' resistance that forced the late Qing reformers to be more cautious about the "kinship" and "inheritance" parts of the draft civil code, inviting Chinese jurists to draft rather than hiring foreign (Japan) experts.
In 1911 they first submitted the drafts of the first three parts, delaying the submission of the last two.
On the whole, the five parts of the 1911 draft in fact contain a deep contradiction between the old and the new ideas. Yu Lian-san, in his pre-October 26 pre-commute, explained that he and the other authors of the draft code followed two principles: on the one hand, to adopt the best and most up-to-date Western judicial theories and principles, and on the other hand, to "maintain the people's interests for thousands of years" with regard to marriage, kinship, and inheritance (Draft of the Great Qing Civil Law, 1911:3a-b). This is also the reason why they adopted the discourse of rights in the first part of the code and abandoned those principles in the second part.
Under the "Minyi" principle of patrilineal inheritance, women basically have no independent property and inheritance rights. Family property must be passed from father to son along the patrilineal lineage (Laws of the Great Qing Dynasty, Example 88-1), and if a man has no heirs, the couple is required to choose one of the man's nephews as a stepson, a system that uses Bai Kai's terminology as "compulsory nephew inheritance" (Bai Kai, 1999).
The 1911 draft Civil Code was more or less untouched by these requirements (arts. 1390, 1466). The same is true of the 1925-1926 draft (arts. 1309, 1310). The 1911 draft provided that the son of a sister or a son or son-in-law of a sister or wife may become the legal heir if the brother has no son (Article 1390). The 1925-1926 draft also included the grandson of the uncle (Article 1310).
It was not until the Kuomintang Code that the idea of individual rights was fully implemented into its logic. The legislators completely rejected patrilineal inheritance and the old hierarchical structures in the family and society. In the eyes of the law, there is no difference between men and women, between young and old. As explained by the Central Political Conference in its "Principles of Legislation", under the patrilineal system, a distinction is made between patrilineal relatives (clan relatives), matrilineal relatives (maternal relatives) and the wife's relatives (internal relatives), and only those within the paternal line have the right to inheritance. On the contrary, the new concept only distinguishes between blood relatives and in-laws. Daughters then have the same inheritance rights as sons, and wives and husbands have separate property rights (Pan Weihe, 1982:109; see also Van · de ·Walker, 1939:51-58).
According to the view of the Central Political Conference, the patrilineal inheritance is a remnant of the feudal aristocracy of the Zhou Dynasty and is a thing that is out of step with the times. With the end of hereditary aristocracy, the family, rather than the patrilineal lineage, became the basic organizational unit of society. Ancestor worship is generally carried out by one family rather than one family. In this way, the only thing left over from the inheritance of the clan is the custom of the heirless couple to choose a man as the heir (heir) of the family. With the current redefinition of the family and the requirement for equality between men and women, the practice could no longer be maintained. The law no longer recognizes any element of the principle of inheritance (Pan Weihe, 1982:117-119: Hu Hanmin, 1978:872-885).
The new code gives female "lineal blood relatives" ("lineal relatives") the same first priority in inheritance as male lineal blood relatives (Article 1138). Inheritance of property was thus separated from the inheritance of the ancestor, and the concept of male "heirs" was completely abandoned. If a couple does not have a son, the daughter can inherit the property; If there is no daughter, the parents can inherit; If the parents are deceased, the siblings can inherit; If there are no siblings either, the grandparents can inherit.
In addition, widows receive the same share as their children in relation to the inheritance rights granted to both husband and wife in the law; If she and her husband have no offspring, she will receive one-half of the property and the other half to her deceased husband's parents or siblings; If he has no parents and siblings, she will inherit two-thirds of the property, and the remaining third will go to his grandparents; If none of the above persons exist, she may inherit the property alone (Article 1144).
Under the old code, the widow's "right" to property was only a derivative of her status as an heir to the wife or motherhood, and she had custody of the property on behalf of her husband or his son, but not her own inheritance rights.
The insistence on individual rights and equality between men and women has led to another major departure from the old law. Both the 1911 and 1925-1926 drafts retained the old Qing rule that marriage required parental consent (arts. 1338, 1105). Marriage has never been expected to be a free choice for both men and women. Divorce under the age of 30 is required by the consent of both parents (arts. 1359, 1148).
The new code is completely contrary to the old law and the first two drafts. Article 972 of the new Code stipulates that: "The marriage contract shall be made by the man and the woman. Article 1052 lists nine circumstances in which either spouse may file for divorce: bigamy, adultery, abuse, abuse of the other party's direct blood relative, attempted murder of the other party, incurable disease, severe incurable mental illness, unexplained life and death for three years, and imprisonment for more than three years. There is another situation that applies only to the wife. Article 4 allows for divorce if "the wife is ill-treated by the husband's immediate family, or is abused by the husband's immediate family, to the point that it is unbearable to live together". Here we might speculate that because the wife routinely lived with her father-in-law and mother-in-law, the compilers of the code did not consider the opposite at all. This article expands the criteria for granting divorce in previous drafts by changing the provision that only one of the husbands is allowed to petition for divorce on the grounds of adultery, thus ending this unequal treatment of women (arts. 1362, 1151).
In the end, all of this adds up to a fundamental conceptual reformulation of women's choices and autonomy. The Kuomintang code imagined women as independent and free subjects. They inherit property like men and have the same rights as men in marriage and divorce. In the eyes of the law, women have the same complete control over their lives as men.
With the adoption of the principle of equality between men and women, the Kuomintang code has overcome the last hurdle in the process of adopting modern Western civil law in China. The drafts of 1911 and 1925-1926 were almost entirely modeled after the Germany Civil Code in the first three parts, but not in the last two; The Kuomintang Code, however, completely adopted the latter two parts. With this change, modern Western civil law has been transplanted to China in the 20th century.