認真對待別居權──別居訴訟的創生與《最高法院遷臺舊檔》中之實踐（一九一二～一九四九）

Taking Separation Right Seriously:A Legal-Social History in Republican China (1912-1949)

既有研究咸認民國民法典賦予了人們種種權利。本文主張司法活動在別居權的創生與實踐發展中，扮演著超前與主導的角色。民法典與草案雖有其作用，但大理院與最高法院判例顯示早在民法典施行前法院已承認別居權。在民法典施行後，司法亦主導別居權的發展。遷臺舊檔更清楚顯現別居權發展乃建立在當事人由下而上、努力不懈的訴訟行動。原告皆為妻；法院大多判准丈夫納妾的妻子別居。妻子提起訴訟之動機，與其說是獲得分居自由，毋寧是藉此確立事實上別居具有正當理由並確保受扶養之法律權益；即便在政權動盪之際，法院不僅審理迅速，並且依法踐行言詞辯論、證據調查等程序。別居權在民國中國的認真實踐，賦予妻子在離婚以外的選擇，不僅一定程度改變當時婚姻中的權力分配，亦可作為思考目前別居立法改革的歷史參照。

This article examines the emergence, development, and practice of the separation right in the Republican era of China (1911-1949). While the existing research stresses the role of the ROC Civil Code in bringing about separation right to the courts and the litigants, this article reveals a more complicated story in which judicial separation was first recognized by the courts, then gradually emerged through a series of judicial decisions before the enactment of the Civil Code, and more grounded when the Code was adopted. Although the Code and its drafts played certain roles in the development of separation right, the courts in fact led the legal reform. Also, the development of separation right was better understood as a bottom-up process: it was the wives who brought their grievances all the way to the Supreme Court that changed the law and realized this unprecedent right in action. Furthermore, in order to gain a deeper understanding of how the separation right was put into practice, this article analyzes separation cases in the Taiwan Supreme Court Old Archive, which contains litigation cases filed in district courts that made all the way to the supreme court during the late Republican China. The fact that all separation cases were wives-initiated and decided in favor of wives showed that the judges, despite being all male, extended significant legal protection to wives who suffered marital abuse or infidelity. Also, judicial separation was taken quite seriously. Every case was adjudicated in accordance with the law. Regardless of the political upheaval in the late 1940s, almost all the cases were decided in a few months after proper procedure, such as oral arguments and investigation of evidence in open hearings in which both parties participated in person. Since the wives who sued for separation usually had settled in places away from their husbands’ residences, the main motive for wives was rather to legitimize separation, maintain marital status, and request for marital maintenance. While allegation of abuses by husbands or in-laws was hard to be substantiated, husbands’ taking concubines served as the major reason that judges granted wives’ separation. Republican family law provided alternative legal remedy for a wife to live apart from her husband and his concubinage when the marriage in principle was still patrilocal. Meanwhile, it was those wives who were economically and socially capable of suing for separation that made this unpreceded right real in action. Overall, this article not only examines how judicial separation altered the way power distributed between husbands and wives in Republican China but also serves as a reference for the current effort of legalization of separation in contemporary Taiwan.