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中国传统法制中的婚姻成立和问责制度以尊长主婚权为核心,这一制度有其存在的伦常合理性和维护婚姻稳定性的积极作用,但在实际运行中容易导致父母包办婚姻,忽视当事男女的个人意志。从清末到民国,特别是民国初年,在西方个人本位法学理论的冲击下,移植法制试图确立当事男女个人意志在婚姻成立过程中的决定性作用,渐次否定尊长(父母)的主婚权。这一做法引发了法律内部的矛盾和法律同社会习惯的冲突,直到今天仍值得充分省思。
The system of marriage establishment and accountability in Chinese traditional legal system takes the supremacy of the main marriage as the core. This system has its usual ethical rationality and the positive role of maintaining the stability of marriage. However, in actual operation, it is easy for parents to arrange marriages and neglect Personal wills of men and women. From the late Qing dynasty to the Republic of China, especially in the early Republic of China, under the impact of Western individual-based jurisprudence, the transplanting legal system attempts to establish the decisive role of the individual will of men and women in the process of the establishment of marriage and gradually negate the principle of marriage of the elders (parents). This practice has triggered conflicts within the law and conflicts between law and social habits, which still deserve to be fully thought out today.