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仅就制度层面而言,民国民法关于离婚的立法实践赋予了夫妻双方平等解除婚姻关系之权利。此规定似乎正回应了其时的社会思潮,并在一定程度上促成妇女援引民法之规定起诉离婚。然而通过对民国川省新繁县司法档案的梳理,发现无论是离婚案件的讼因还是其审理过程,都并未严格吻合民国民法的制度规范。相反,它们还在相当程度上保留了中国传统司法的印记。此种新旧交错的情势.须为促进法制现代化者所重视。
At the institutional level alone, the legislative practice of divorce in the civil law of the Republic of China confers the right of both spouses to terminate their marriage on an equal basis. This provision seems to be responding to the prevailing social trend of thought, and to a certain extent, prompting women to prosecute divorce by invoking the provisions of civil law. However, through combing the judicial files of Xinfan County in Sichuan Province, the author finds that neither the lawsuit nor the trial of divorce cases are in strict accordance with the institutional norms of the civil law. On the contrary, they still retain the mark of traditional Chinese justice to a certain extent. Such old and new patterns of interlacing must be taken seriously by those who promote the modernization of the legal system.