"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-"

我研究了从1899年到1949年东京地方法院关于离婚的大约1300项判决。妻子提交的案件为967件，妻子胜诉的概率为87.7%。妻子提出离婚的原因主要有：（1）三年以上的绝望;（2）分居;（3）虐待和侮辱;（4）惩罚。当丈夫为原告时，其原因有：（1）诽谤;（2）失踪三年以上;（3）骚扰;（4）虐待和侮辱。这些判决都是从“婚姻破裂原则”的角度来判断的，这一点非常引人注目。该原则是在对《旧民法》第813条第5款的解释中演变而来的。(1)丈夫通奸：东京地方法院认定“对妻子的严重侮辱”这些情况是丈夫与情妇同居（包括分居后）或允许她进入他的房子，他们私奔，进一步的妻子被丈夫忽视，丈夫一直与情妇保持关系。虽然法院修改了旧民法中只规定妻子通奸为离婚原因的不平等，但承认离婚是因为婚姻关系已经因丈夫通奸而破裂。但通奸丈夫提出的离婚要求是不允许的。(2)丈夫暴力：有些案件适用于“无法忍受的共同生活”，因为暴力的严酷和重复。另一方面，法院重视婚姻关系是否因丈夫通奸而破裂。例如，精神失常时的无意识暴力行为、没有照顾妻子的疾病而进行的消极侮辱、丈夫通奸时的暴力行为等。由此可以看出，在现行民法第一次采用“婚姻破裂原则”之前，东京地方法院的具体判决中，“婚姻破裂原则”这一法律原则的展开。

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.