由客体到主体:民初女性婚姻权利的变化——以大理院婚约判解为例

From Object to Subject:Changes in Women's Marital Rights at the Early Nationalist Period Using Resolution Cases of Marital Disputes Handled by the Da Li Yuan

在传统的婚姻制度与习俗中,女性并非婚姻的主体,在婚约定立中,她们处于被安排的地位,在婚约履行中,她们是被强迫履行婚约义务的客体,在婚约的解除中,也是被双方父母争议的"标的物",这种状况直到民国初年的民事基本法仍然没有任何改变。但民国初年的大理院因受西方民法理念及国内妇女运动的影响,通过一系列判解对《现行律民事有效部分》的相关规定进行了一定的变通,这种变通使民初女性的婚姻权利体现出由客体而主体的变化趋势。

In traditional marriage system and practice,women were not subjects but only objects as they were assigned to their subordinate marital status in marriage agreements and forced to perform their duty in the implementation of marital agreements.In dissolution of marital agreements they were the targets of parents at either side,which did not change in the Civil Code of the early Nationalist period.However,the Da Li Yuan at the time was under the influence of western philosophy underlying the practice of civil code and the women＇s movements in the country and started to change its interpretation of the Effective Section of the Current Law on Civil Affairs in judgments,which indicated the rise of women＇s marital rights in a shift of their position from being the object to the subject of marriage.