從主婚權邁向婚姻同意權──民國前期法制上婚姻觀的轉變

From Authority over Marriage to Right to Consent to Marriage: The Transformation of Conceptions of Marriage in the Legal System of Early Republican China

傳統中國法上，婚姻的本質是家族與家族的結合，其目的在於增進家族的利益，因此，男女的嫁娶係由祖父母、父母等家族的尊長「主婚」。至民國前期，立法方面，歷次親屬法草案及民法親屬編皆捨棄傳統法上的主婚之制，導入了近代歐陸法上以保護嫁娶男女利益為主要目的的「婚姻同意權」制度，不過，在或深或淺的程度上，亦顯示了對於父母、祖父母或家長的尊重。在司法實踐方面，北洋政府時期的大理院承認主婚權制度繼續有效，但轉化了主婚權的內涵，謀求兼顧尊長及嫁娶男女的利益，一方面使主婚權人對於嫁娶男女享有婚約締結權與婚姻同意權，另一方面又規定嫁娶男女成年後，主婚權人締結婚約須經男女本人同意，其行使婚姻同意權時亦不得濫權。而到了南京國民政府時期，在民法親屬編施行前後，最高法院與司法院逐步削減、終結婚約締結權的效力，同時縮小婚姻同意權的適用範圍，確立了婚姻同意權作為親權一環的定位，以及專以保護未成年子女利益為目的的理念。從主婚權邁向婚姻同意權的過程裡，我們也可看到民國前期法制上呈現的婚姻觀，在個人與家族這兩種價值之間不斷地擺盪。

Under traditional Chinese law, marriage was essentially a union between two families and was intended to further family interests. Accordingly, marriages were arranged by senior family members, such as grandparents and parents, who exercise authority over marriage. In the early Republican period, however, successive drafts of family law and the Family Part of the Civil Code abandoned the traditional system of authority over marriage and introduced, following modern Continental European law, the right to consent to marriage, a system primarily designed to protect the interests of the individuals entering into marriage. Nevertheless, these legislative measures continued, to varying degrees, to reflect respect for parents, grandparents, and heads of household.
In judicial practice, the Daliyuan during the Beiyang Government period recognized the continuing validity of the traditional authority over marriage but transformed its substance in an effort to accommodate the interests of both senior family members and individuals entering into marriage. On the one hand, a person vested with authority over marriage had both the authority to conclude an engagements on behalf of the prospective spouses and the right to consent to their marriage. On the other hand, once the prospective spouses reached adulthood, an engagement concluded on their behalf required their own consent, and the holder of the authority over marriage was prohibited from abusing the right to consent to their marriage.
During the Nanjing Nationalist Government period, both before and after the Family Part of the Civil Code came into force, the Supreme Court and the Judicial Yuan gradually restricted and ultimately eliminated the authority to conclude engagements on behalf of prospective spouses. At the same time, they narrowed the scope of the right to consent to marriage, establishing it as an aspect of parental authority and affirming that its sole purpose was to protect the interests of minor children. The transition from authority over marriage to the right to consent to marriage thus reveals how conceptions of marriage embodied in the legal system of early Republican China continually oscillated between two competing values: the individual and the family.