An Investigation on the Legislative Tradition of Should Be Rough Rather Than Detailed in China's Marriage Law—Also on the Early Practice of Chinese Feminist Movement

Abstract

The Civil Code of the People's Republic of China, which was reviewed and passed in May 2020, continues the tradition of should be rough rather than detailed in China's marriage and family legislation since the promulgation of the Marriage Law of 1950. The embodiment of this tradition in the marriage law text is fewer legal provisions, more general provisions, and more moral norms. This legislative tradition did not come from the Soviet Union but was mainly due to the unique legal nature of the Marriage Law of 1950. This law is the product of the victory of the Chinese feminist movement since the Revolution of 1911. Its legislative tradition of should be rough rather than detailed is determined by the legislative purpose of this law to break the feudal marriage system and protect the rights of women and children, and its unique legal attributes. The formulation of this law was subject to the legislative difficulties and the social reality faced by the marriage law drafting group centered on women leaders. It was a helpless choice in a particular period. In the modern society where China's economy, society, and marriage and family relations have undergone significant changes, it is crucial to improve marriage legislation and reverse the legislation tradition of should be rough rather than detailed, so that the improvement of legislative techniques and legislative goals meet the needs of economic and social development.