民法編纂過程における女戸主の地位と入夫婚姻

「家」の財産をめぐって

抄録

In "the System of House" (Iye-system) of Japan, when a female House-Head (Onna-Koshu) married, this marriage was called "Nyufu Kon-in" which the husband entered into the wife's "House" (Iye). The law about which of the husband and the wife became the new House-Head after marriage varied from the early days of Meiji to the enforcement of the Civil Code of 1898.
The Proclamation No. 263 of "Dajokan" (the Council of State) in 1873 ordered that the wife had to transfer her status of the House-Head to her husband immediately after marriage. But we can see from "Ukagai-Shirei" (inquiries from the prefectures and instructions by the government) that the law of this proclamation could not be carried out perfectly and it was modified gradually. There were some cases that the wives remained the House-Head after marriage.
In the process of the codification of the Old Civil Code, this problem developed as shown under. The first draft of 1888 regulated that the husband became the House-Head. But the modification after that made the wife the House-Head and the husband a existance of the representative of the House-Head. This was succeeded to the Old Civil Code promulgated in 1890.
But the Controversy on the Civil Code arose and the Old Civil Code became void. Then the New Civil Code was codified and came into force in 1898. We'll call it the Meiji Civil Code (Meiji Mimpo).
The Meiji Civil Code regulated that the husband became the House-Head as a rule, but it recognized exceptionally that the wife remained the House-Head by the representation of the intent of the parties. But the relation of the rule and the exception of the Meiji Civil Code was reversed by the Family Register Law (Koseki-ho) of 1916.
Why did the law about the status of the House-Head after the marriage of a female House-Head(Nyufu Kon-in) vary as mentioned above? In order to answer this question, we must take notice that the status of the House-Head and the property of the "House" were indivisible in "the System of House".
When a female House-Head married and she transferred her status of House-Head to her husband, the whole property of the "House" belonged to him. By the way, the property of the "House" of those days was the economical foundation of the family's living. If the husband who became the House-Head wasted the property, the family's living would be endangered. In order to prevent this danger, it could not but be recognized that the wife remained the House-Head in spite of the contradiction to the ideology of "the System of House" in which men predominated over women.