중화민국 민법의 제정과 전통 ‘家産制’의 변화 (The Civil Law Enactment and Change in the Traditional Family Property System of the Republic of China)

서지정보

· 발행기관 : 동양사학회
· 수록지 정보 : 동양사학연구 / 151호 / 177 ~ 224페이지
· 저자명 : 손승희

초록

Legal reform of traditional Chinese laws started at the end of the Qing Dynasty, and big changes occurred to the traditional family property system due to the enactment of the Civil Law. Although the core of the traditional family property system was cohabitation and property sharing, the basic principle of the Civil Law was gender equality and acknowledgement of individual rights; therefore, an individual’s peculiar property was acknowledged and sons and daughters can equally inherit. For a wife’s marriage portion, which was subjugated by her husband during the traditional period, complete independent ownership of the wife was acknowledged. When disposing the property remaining as shared property without being permanently divided under the name of the property of worship in the traditional family property system, the Civil Law prescribed the requirement of the whole sharers’ consent. All of these pointed to the rejection of the patriarchal right that monopolized the right of property disposition in the traditional period and represented the acknowledgement of personal ownership that one’s own property could be freely disposed.
A person who played a leading role in the enactment process of the Civil Law was the president of the Legislative Yuan, Hu Hanmin. He was closely involved in the Civil Law’s enactment process to embody the Three People’s Principles of Sun Yet-sen, whom he followed, as a law. He applied the Three People’s Principles in the Civil Law and paid attention to the changing trend of worldwide legal thought. It was the concept of “socialization of law” that was popular in the West between the end of the 19th century and the beginning of the 20th century, and it was pursuing a whole society’s gains rather than personal gains. The reason why Hu Hanmin accepted the socialization of law concept was because he thought it had something in common with Sun Yet-sen’s Three People’s Principles. Sun Yet-sen asserted a country’s freedom, restricting an individual’s freedom like Mill and Spencer, after discarding the liberalism that he had believed amid competition with world powers. Hu Hanmin tried to specifically implement Three People’s Principles in the legal system like a French socialist of law, Léon Duguit, who tried to embody the law socialization concept in the specific legal system as the self-reflection of capitalism.
Hu Hanmin tried to reflect unique Chinese traditions and customs and absorbed them into the modern civil law system; thus, the Civil Law kept the family system as a singular Chinese social institution. However, he chose a method to correct its harmful effects and bad customs. Although he did not reject the existence of the head of the household, the rights of the head of the household who had decisive authority in the traditional family property system were reduced, and obligations were consolidated. What is worthy of notice is that any regulation was not made on family property in the Civil Law. Even though the family system remained, the traditional family property system was not acknowledged, legally at least, although individual ownership was recognized.
Hu Hanmin tried to emphasize the independence of the Civil Law, asserting succeeding, unique Chinese traditions, accepting the West’s law socialization concept, and pursuing entire social gains by making the family system remain. The reason why he put importance on the Chinese family system was because Sun Yet-sen insisted that family and lineage should be used to remodel Chinese national character like “a handful of sand.” By succeeding in this, Hu Hanmin insisted that nationalism needed to be consolidated through unity centered on a unique Chinese social institution, namely family and lineage.
However, Sun Yet-sen and Hu Hanmin could not discern the meaning of the ancient time’s dispersed liberty from modern freedom, and did not understand the West’s true law socialization concept. The start of the West’s socialization of law concept was to assure more individual rights and freedom. Because China opposed world powers and pursued national independence through legal modernization, the entire social gains were emphasized from the initial stages of the modern law adoption; that is, it was national selection that reinforced unity-lacking national characteristic through the traditional family system. Therefore, although the traditional family system was to be corrected through the restriction on the rights of the head of the household without acknowledgment of family property, the discernment of these two was limited as long as the Civil Law acknowledged the traditional family system.

영어초록

Legal reform of traditional Chinese laws started at the end of the Qing Dynasty, and big changes occurred to the traditional family property system due to the enactment of the Civil Law. Although the core of the traditional family property system was cohabitation and property sharing, the basic principle of the Civil Law was gender equality and acknowledgement of individual rights; therefore, an individual’s peculiar property was acknowledged and sons and daughters can equally inherit. For a wife’s marriage portion, which was subjugated by her husband during the traditional period, complete independent ownership of the wife was acknowledged. When disposing the property remaining as shared property without being permanently divided under the name of the property of worship in the traditional family property system, the Civil Law prescribed the requirement of the whole sharers’ consent. All of these pointed to the rejection of the patriarchal right that monopolized the right of property disposition in the traditional period and represented the acknowledgement of personal ownership that one’s own property could be freely disposed.
A person who played a leading role in the enactment process of the Civil Law was the president of the Legislative Yuan, Hu Hanmin. He was closely involved in the Civil Law’s enactment process to embody the Three People’s Principles of Sun Yet-sen, whom he followed, as a law. He applied the Three People’s Principles in the Civil Law and paid attention to the changing trend of worldwide legal thought. It was the concept of “socialization of law” that was popular in the West between the end of the 19th century and the beginning of the 20th century, and it was pursuing a whole society’s gains rather than personal gains. The reason why Hu Hanmin accepted the socialization of law concept was because he thought it had something in common with Sun Yet-sen’s Three People’s Principles. Sun Yet-sen asserted a country’s freedom, restricting an individual’s freedom like Mill and Spencer, after discarding the liberalism that he had believed amid competition with world powers. Hu Hanmin tried to specifically implement Three People’s Principles in the legal system like a French socialist of law, Léon Duguit, who tried to embody the law socialization concept in the specific legal system as the self-reflection of capitalism.
Hu Hanmin tried to reflect unique Chinese traditions and customs and absorbed them into the modern civil law system; thus, the Civil Law kept the family system as a singular Chinese social institution. However, he chose a method to correct its harmful effects and bad customs. Although he did not reject the existence of the head of the household, the rights of the head of the household who had decisive authority in the traditional family property system were reduced, and obligations were consolidated. What is worthy of notice is that any regulation was not made on family property in the Civil Law. Even though the family system remained, the traditional family property system was not acknowledged, legally at least, although individual ownership was recognized.
Hu Hanmin tried to emphasize the independence of the Civil Law, asserting succeeding, unique Chinese traditions, accepting the West’s law socialization concept, and pursuing entire social gains by making the family system remain. The reason why he put importance on the Chinese family system was because Sun Yet-sen insisted that family and lineage should be used to remodel Chinese national character like “a handful of sand.” By succeeding in this, Hu Hanmin insisted that nationalism needed to be consolidated through unity centered on a unique Chinese social institution, namely family and lineage.
However, Sun Yet-sen and Hu Hanmin could not discern the meaning of the ancient time’s dispersed liberty from modern freedom, and did not understand the West’s true law socialization concept. The start of the West’s socialization of law concept was to assure more individual rights and freedom. Because China opposed world powers and pursued national independence through legal modernization, the entire social gains were emphasized from the initial stages of the modern law adoption; that is, it was national selection that reinforced unity-lacking national characteristic through the traditional family system. Therefore, although the traditional family system was to be corrected through the restriction on the rights of the head of the household without acknowledgment of family property, the discernment of these two was limited as long as the Civil Law acknowledged the traditional family system.

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