"The study of Divorce Law of "the principle of breakdown of marriage" in Japan -The analysis of decisions in Tokyo district court after the enforcement of Old Civil Law-"

从1899年到1949年，我查阅了大约1300份与东京地方法院离婚有关的判决。妻子提交的案件有967件，妻子胜诉的概率为87.7%。妻子提出离婚的许多原因是(1)失踪三年以上(2)遗弃(3)虐待和侮辱(4)惩罚。如果丈夫是原告，原因是(1)遗弃(2)失踪三年以上(3)成年(4)虐待和侮辱。这些判决是非常值得注意的，这些判决是从“婚姻破裂原则”的角度来判断的。该原则是在旧民法第813条第5节的解释基础上发展而来的。(1)丈夫通奸：东京地方法院认定“严重侮辱妻子”。这些案件是丈夫与情妇同居(包括分居后)或让她进入他的房子并私奔，而妻子与丈夫保持关系的丈夫对妻子不屑一顾。虽然法院修订了旧民法中只规定以通奸为离婚原因的不平等，但承认离婚，因为婚姻关系已经因丈夫通奸而破裂。但掺假的丈夫要求离婚是不允许的。(2)丈夫的暴力：由于暴力的严酷和反复，有适用于《无法承受的共同生活的保姆》的案例。另一方面，法院重视婚姻关系是否因丈夫通奸而破裂。例如，精神错乱导致的无意识暴力行为、没有照顾妻子患病的消极侮辱、以丈夫通奸为背景的暴力行为。如上所述，在现行民法首次采用“婚姻破裂原则”在东京地方法院的具体判决中展开之前，我们可以看到该原则的展开。

I examined about 1300 decisons bearing on divorce of the district court in Tokyo from 1899 to 1949. The cases submitted by wife are 967, and the probability of wife's winning is 87.7%. Many of the causes of divorce submitted by wife are (1) Desapperance more than three years (2) Desertion (3) Cruelty and insult (4) Punishment. When husband is a plaintiff, the causes are (1) Desertion (2) Disappearance more than three years (3)Adulty (4) Cruelty and insult. Those decisons are very noticeable, which were judged from the viewpoint of "the principle of breakdown of marriage". The principle was evolved concerning the construction on Art.813, sec.5 of Old Civil Law. (1) Adultery of husband : Tokyo district court found "the serious insult for wife". Those cases are that husband cohabited his mistress (including after separation) or admitted her into his house and they eloped, futher wife was unregarded from husband who kept having a relation with his mistress. While the court amended the inequality of Old Civil Law which provided only adultery of wife for a cause of divorce, admitted the divorce as marital relations have already broken down by adultery of husband. But the claims of divorce by adulterate husband weren't permitted. (2) Violence of husband : There are cases which were applicable to "Curelty with an unbearable living together" because of harshness and repetition of violence. On the other hand, the court attched importance to whether marital relations have broken down by adultery of husband or not. As examples of such cases, unconscious violent deeds by insane fits, negative insults without nursing wife's illness, and violences with the background of husband's adultery.As is stated above, we can find out the unfolding of the leagal principle on "the principle of breakdown of marriage" as to concrete decisions of Tokyo district court before existing Civil Law adopts the principle for the first time.