Request for Divorce

Introduction by Tadashi Ishikawa, University of Central Florida (Orlando, FL, U.S.A.).


Ms. Liao Yinghua’s divorce case against Mr. Chen Junxiu presents sources of information that revealed the layered development of law in the interwar Japanese empire, the woman question, and gender and sexuality. Both civil and criminal law, as well as their practices, had worked to ensure differences between metropolitan Japanese and colonial subjects until the late 1910s. As Japanese jurists recorded Han Taiwanese civil and social practices at that time, those experts attempted to reorient the differential treatment of Taiwanese to the formation of indigenous law in Taiwan that truly represented their tradition. However, such juridical experiments failed to materialize amid the logic of the assimilation policy since 1919, shifting to the legal integrity of the Japanese empire including colonial Taiwan. That shift in emphasis appeared salient in the Japanese colonial courts where Japanese judges in the three-tier court system under the Government-General of Taiwan (GGT) made decisions on both Japanese from the metropole and colonized Taiwanese without distinction. Before and after 1923, the GGT announced that judges based customary law on the issues of Taiwanese family and succession. Despite the official directives, those judges applied the 1898 Meiji Civil Code to cases on Taiwanese families and marriages, categorizing and thus absorbing Taiwanese civil practices into Japan’s legal system.


The structural changes of the colonial judiciary intertwined with increased attention to, and judicial trends in, women’s issues in Taiwan. Since the early 1920s, colonial Japanese officials and non-officials, as well as male Taiwanese elites, called for the emancipation of Taiwanese women from the constraints of their household and patriarchal society in one way or another. Those calls were directed at not only the unfreedom of wives from their undesirable marriage, but also the fulfillment of pure love marriage that excluded the practices of premarital sex. Corresponding with such extrajudicial circumstances, the Japanese colonial courts saw the surge of cases on Taiwanese human affairs including, but not limited to, women’s requests for divorce. Unlike men who enjoyed their discretionary authority to divorce their wife, Taiwanese women were customarily disallowed to initiate their divorce in the occasions of domestic violence. Yet, the Civil Code enabled those women to request for granting court divorce, which encouraged more Taiwanese women to seek to divorce their husband in the early 1920s and thereafter.


Such larger legal circumstances came down to women’s actual pursuit of gender equality as Ms. Liao confronted Mr. Chen in her civil lawsuit. She took advantage of the unprecedented legal idea that divorce could be given to women who received abusive treatment and abandonment from their husband, alleging that Ms. Liao married Mr. Chen and could thus divorce him due to his marital misconduct. Both Japanese law and Taiwanese society expected wives to represent the household and, by extension, their husband in transactions. According to the Civil Code and Taiwanese customary law (Taiwan shihō), wives had no legal capacity of owning their private properties unless they specifically noted their transactions as the objects of individual disposal. Yet, Ms. Liao was able to assume that she, albeit a wife, legitimately engaged in personal transactions by using her husband’s seal to borrow 120 yen and possessing his unsullied and polished rice. If the judges granted Ms. Liao’s divorce from Mr. Chen, she could refer to Article 709 in the Civil Code, claiming that he should compensate her for his misconduct that caused psychological and substantial damages to her. Legal tools became more available for her and other Taiwanese women, laying the foundations for the potential changes they hope to see.


However, at the same time, Ms. Liao’s lawsuit suggested the realities she and other Taiwanese women had faced. Neither the Civil Code nor Taiwanese customary law stipulated that wives were entitled to part of domestic landed property and any other forms of fortune after their divorce. Mr. Liao found no legal foundations that she could continue to keep a certain amount or half of 120 yen and rice after divorcing Mr. Chen. In the first place, Ms. Liao’s action to borrow money from the third party did not legally and customarily constitute one of the wife’s routine domestic affairs, which meant a transaction out of her legal capacity. In practical terms, it is difficult to consider that Ms. Liao engaged in her personal transactions as she used Mr. Chen’s seal or, by extension, the marital household’s seal and purchased rice from him. When Ms. Liao sued Mr. Chen for divorce, she lived in the moment when the judicial acceptance rate of granting women’s divorce had decreased since the early 1930s. As her case suggested, Taiwanese women could freely pursue their divorce in the Japanese colonial courts that, in turn, paid those women back through judicial inactions to grant divorce, ultimately facing new burdens on their freedom.


The case in translation took place against the backdrops of legal and women’s historiography of colonial Taiwan, complicating preexisting knowledge through multiple narratives behind the judicial categories, sexuality, and gender in interwar Taiwan. The case itself seems simple in terms of Ms. Liao’s request for divorce due to Mr. Chen’s domestic violence; his arguments for rejecting the severity of domestic violence and stressing her illegal possession of his property; and the judges’ ruling against her divorce from him on November 13, 1936. However, the case requires one to ask whether or not the legally classified arguments over divorce were the most important for the parties concerned. Moreover, that case allows him or her to ask three sets of mutually related questions as to (1) undefined social relationships; (2) the roles women’s sexuality played; and (3) shifting relationships between Mr. Liao, Mr. Chen, and the judges. By asking those questions on interactions between law and society, the readers of the source can analyze the Japanese empire somewhere in between bottom-up and top-down approaches.


(1) First Set of Questions


- In addition to divorce, what types of social relationships did Ms. Liao and Mr. Chen talk about? How positively or negatively did the litigants consider those types of social relationships? How did they relate each of those relationships to the marriage? How could legal knowledge in the Japanese metropole inform the discussions about those relationships? What relationship did the judges prioritize over the other types of relationships? Considering those questions, what conclusion can you take away from the process of the conversations?


(2) Second Set of Questions


- How did society in colonial Taiwan deem sexuality in general and the relationship between it and the marriage? How did the question appear in the arguments and decision in the case? How did women’s sexuality stand out in the courtroom? How did each party––Ms. Liao, Mr. Chen, and the judges––treat women’s sexuality? How do you agree and disagree with an argument that Taiwanese women’s sexuality was regulated?

(3) Third Set of Questions


- Did Mr. Chen and the judges agree with each other on the treatment of Ms. Liao? If so, how? Are you considering that Ms. Liao was a victim? If so, how? If not, how? How did she consider her own sexuality? How did she make her sexuality work? What did she gain and lose as the result of not only the case itself, but also a shared understanding of her situations? How do you interpret the case at the intersection of colonial law, sexuality, and gender in Taiwan? Was this case concerned merely with women’s history in colonial Taiwan?


Special Note:


I used pseudonyms to refer to the litigants as I agreed with the request from the National Taiwan University library. The library has considered that the website for this translation project would expose their personal information and compromise privacy.


Source Information:


[Original Publication]: unpublished source


[Location of the Material]: digital archive in Special Collections at National Taiwan University, Taipei, Taiwan (R.O.C.); access to the archive upon application


TCCRA, Taichū chihō hōin Shōwa 11 nen gōmin dai 1–324, 103 gō [Taizhong District Court, original record of joint civil judgment in the eleventh year of the Shōwa era] (1936), no. 1–324, 103, pp. 154–157, accessed on September 16, 2020,

http://tccra.lib.ntu.edu.tw/tccra_develop/record.php?searchClass=all&id=tc101010042348&now

=154>.


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Verdict


Dadu Village, Dajia County

Concurrently at Erlin Village, Beidou County

Plaintiff: Liao Yinghua

Plaintiff’s attorney: Yang Jixian

Dadu Village, Dajia County

Defendant: Chen Junxiu


The joint civil judgement number 103 in 1936, regarding the divorce lawsuit between aforementioned litigants is as follows.


Text of judgement:

Plaintiff’s claim is dismissed.

Defendant’s expenses shall be undertaken by the plaintiff.


Statement of facts:

Plaintiff’s attorney requested that the court rule in favour of divorce between the defendant and plaintiff and that the defendant bear the lawsuit expenses. The plaintiff’s attorney provided the following reasons for the application. The plaintiff and defendant married in mid-June 1930 and have been cohabiting since then. Their marriage registration has not been submitted until today; but the plaintiff discovered defendant sleeping together with Li Chunjing, a non-party to the case, on 13 March 1934 (in the lunar calendar). The defendant detested the plaintiff since then and on 13 October 1934 (in the lunar calendar), struck the plaintiff without cause using a shoulder pole, inflicting pole-related injuries which required three weeks of treatment. Furthermore, at about 9a.m. two months later, the defendant attempted to strike the plaintiff using a club, threw all of the plaintiff’s belongings out and chased the plaintiff out of the residence. Subsequently, via the mediation of a non-party to the case, the plaintiff negotiated with the defendant to be allowed to return to the residence, but the defendant did not accede. In response, the plaintiff filed the divorce application on the basis that the defendant inflicted unbearable abuse while living together and abandoned the plaintiff on the streets with knowledge. The plaintiff provided a statement in court, requested the examination of witnesses Yang Ming and Xie Weijian to furnish evidence, and recognised the defendant’s first evidence.


The defendant requested a verdict as mentioned in the text of judgment, and in defence, stated the following. The plaintiff was merely a lover; they did not marry. They did cohabit from the mid-June 1930 until 13 December 1934 (in the lunar calendar). In addition to fraudulently misusing defendant’s seal and borrowed 120 yen from Xu Ding during that period, the plaintiff also stole all of the defendant’s unhulled rice in the middle of June 1933 (in the lunar calendar). Despite being caught in the act by the defendant, the plaintiff once again stole two shō (about 1.8 litre) and five (about 0.18 litre) of polished rice on 13 December 1934 (in the lunar calendar). When the defendant submitted a report to the local police post regarding the matter, the plaintiff ran away with all the plaintiff’s personal belongings. The defendant did hit the plaintiff two to three times, not knowing what to do when the defendant detected the aforementioned thefts but denied other claims by the plaintiff. The defendant provided a statement in court and as proof, submitted the defendant’s first evidence.


Justifications:

Firstly, with regards to whether the plaintiff and defendant were married, it is difficult to confirm that they were married based on the testimony of witness Xie Weijian. When considering both witness Yang Ming’s testimony and defendant’s first evidence, which was indisputable, the court recognises the fact that the plaintiff and defendant were not married; they were merely lovers and cohabited. There is no other evidence to influence the court’s confirmation that there was no marital relationship. Therefore, without passing judgement on other points of contention, this application shall be dismissed as there are no grounds to file for divorce. Consequently, this court applies Article 89 of Code of Civil Procedure and passes verdict as written in the document.


Taizhong District Court Civil Collegiate Department

District Court Head Judge

Nitanda Shin’ichi

Judge

Yamada Keisuke

Judge

Rao Weiyue


(Translated by Jude Leong Wei Zhong)


[Selective Readings]:


Tadashi Ishikawa, “Geographies of Gender: Family and Law in Imperial Japan and Colonial Taiwan” (Work-in Progress). –– I have discussed the source material in chapter 6.


Tay-sheng Wang, Legal Reform in Taiwan under Japanese Colonial Rule, 1895–1945: The Reception of Western Law (Seattle, WA: University of Washington Press, 2000). –– This seminal work helps understand the overall structure of the legal system in colonial Taiwan.


Sungyun Lim, Rules of the House: Family Law and Domestic Disputes in Colonial Korea (Berkeley, CA: University of California Press, 2019). –– This recent study uses higher court cases in colonial Korea in ca. 1920–40, examining the changing dynamics of colonial law, familial and marital relationships, and women’s positions based on the categories of the household.


Kō Ikujo, Kindai Taiwan josei shi: Nihon no shokumin tōchi to “shin josei” no tanjō (Women’s history in modern Taiwan: Japanese colonial rule and the birth of the “New Women”) (Tokyo: Keisō shobō, 2001). –– This book analyzes discourses and practices as to Japanese colonial education, Taiwanese men’s pursuit of the emancipation of women, and household management, unpacking the formation of colonial power in relation to the woman question in colonial Taiwan from the 1910s through the late 1920s.


Chen Chao-ju, “Rizhi shiqi Taiwan nüxing lihunquan de xingcheng: quanli, xingbie yu zhimin zhuyi” (The formation of Taiwanese women’s right for divorce in colonial Taiwan: rights, gender, and colonialism), in Taiwan chongceng jindaihua lunwen ji, eds. Wakabayashi Masahiro and Wu Mi-cha (Taipei: bozhong zhe wenhua, 2000), 211–254. –– This article analyzes the case records of the higher court on Taiwanese divorce and related statistics, showing the rise and fall of court divorce in numbers and the subjection of Taiwanese women to the authority of the colonial courts.


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