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Variation and Cause: The Crime of Adultery during Late Qing Dynasty and Early Republican China

Author: WuPengFei
Tutor: LiLi
School: China Youth Political College
Course: Criminal Law
Keywords: the crime of adultery unmarried adultery Debate of Law and Rite self-adaptation of criminal law
CLC: D924.3
Type: Master's thesis
Year: 2007
Downloads: 136
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Abstract


The crime of adultery was an old-line and important accusation in the ancient time. Before the late Qing Dynasty, there was a strict and inclusive system for it, protecting many sorts of social relations. At the end of the Qing Dynasty, Shen Jiaben and his followers reformed and changed this situation. His revision of "Criminal law of Qing Dynasty" simulated Japanese legal regulations. This draft the aroused disapproval from Zhang Zhidong and his followers, thus initiated the " Debate of Law and Rite". The author analyzed the attitudes about the crime of adultery of both sides. They couldn’t agree with each other in three points: the legislation goal and the treatment of the crime of adultery, the influence on the retracting of extraterritoriality that the variation of the legislation of the crime of adultery brought. The cause of these arguments were: the lack of base for thoughts and culture, the lack of social economic foundations, and the deficiency of the exploration on "localization" of law, as well as the impetuosity of this reform.After the 1911 Revolution, the legislators and the scholars all vacillated in this issue. The second Amendment of Criminal law in 1918 made a conclusion to these questions. The unmarried adultery article was deleted. But in the official legislation, this regulation wasn’t deleted until 1928, when the " Criminal Law of Republic of China " was enacted. In 1935, another "Criminal Law of Republic of China" was enacted; this act substituted the terms "committing adultery with unmarried females" with "committing adultery with unmarried persons". From that, the equality in the crime of adultery was actualized. In this process, the woman associations’ striving for the their rights play a vital role.Compared to the intensity of the " Debate of Law and Rite" at the end of the Qing Dynasty, the debate about the crime of adultery in early Republic of China was much more tempered. Incontestablely, the warfare between warlords and the following social tangle reduced people’s attention on legislation, made them too busy to consider the legislative variation. But later on, when the situation is more peaceful, the changed legislation didn’t cause any huge argument either. It indicated that the new legislation was conformed to the social situation in a certain degree. Three factors played the vital role in this process: the influence of new ideas about sex in New Culture Movement, the influence of equal principle in modern west initiation thoughts, as well as women’s promotion of economic starusin and social position in early Republic of China.We may draw a conclusion that the law reform at the end of the Qing Dynasty, completely broke the legislation of the crime of adultery, and establish a rough frame of the modern legislative system for it. And then, the law reform in early Republic of China consummate this model, thus established a new system. In this sense, the " Debate of Law and Rite " had already has laid the foundation for the reform in early Republic of China. The "recklessly advance " in the " Debate of Law and Rite", in addition with the reform in early Republic of China, as well as the wide dissemination of initiation thoughts, brought the new legislative system.From late Qing Dynasty to early Republic of China, two stages of legal reform, caused different social reflections. It attributed to the variation of economical base and ideaistic base. It also indicates that the change of social ideology and social structure reflection, had diluted the "recklessly advance" in the earlier legislation. In this viewpoint, the first criminal law which seems not conform to the society can gradual adapt itself to the society in specifical conditions.

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