| 英文摘要 |
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.
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