Chapter Two

It is a core assertion of this thesis that in order to understand the meaning of zhengxinshe as affair detectives, we must first understand the specific socio-legal context into which they interject themselves. The focus of the second chapter, then, is not on affairs detectives themselves but rather on this context. In isolating the

extramarital affair-related intimate dispute at the object of inquiry, we are essentially paring off a small area of social experience such that the various, intersecting forces that drive and constrain the behavior of husbands, wives, and “third parties” to such disputes become visible. This chapter draws on the insights of law and sociology and sociology of law research to conceptualize the ways that legal norms shape and structure such disputes. The chapter then critically engages with Taiwanese legal scholarship

pertaining to marriage, divorce, and most importantly, criminal adultery. This research affords further insight into key aspects of the particular normative environment in which Taiwanese intimate disputes are embedded. At the same time, we must critically

examine previous research and recognize the ways in which its overly doctrinaire tenor and anti-adultery law slant tend make it difficult to engage in a fuller discussion of the way legal norms operate in actual disputes both during adjudication and in the context of out-of-court bargaining. Where possible, we will also examine what available statistics about marriage, divorce, adultery, and civil and criminal suits can and cannot tell us about social reality. The data and arguments presented in this chapter will not provide a definitive answer to the question of how extramarital-affair related disputes are processed, but it will open new discursive space for discussion of the myriad ways that legal norms and the behavior of the judiciary influence such disputes. Without this space, it would be impossible to conduct the case study analysis in Chapter Four.

Some of the discussion of previous research will be devoted to marriage, since the legal rights and obligations of the institution constitute an integral dimension of the intimate dispute as defined herein. Through hard-won feminist reforms to the Family Section of the Civil Code in the 1990s and the year 2002, the law of marriage has been remade to be formally gender equal.¹⁶ Yet, we must understand that—perhaps by its very nature—marriage still retains some coercive dimensions. In particular, despite the liberalization of divorce law and changing social mores, under some circumstances divorce is difficult—even quite difficult—and this difficulty constitutes one very real interface at which the forces in extramarital affair-related intimate disputes converge and impinge upon disputants’ various interests. The fact that some spouses cannot leave marriages freely raises the stakes in intimate disputes, and in part explains the

16 See Li-ju Lee, Law and Social Norms in a Changing Society: A Case Study of Taiwanese Family Law, 8 S.CAL.REV.L.&WOMEN'S STUD. 413 (1999); Shu-Chin Grace Kuo, A Cultural Legal Study on the Transformation of Family Law in Taiwan, 16 CAL.INTERDISC.L.J. 379 (2006).

extremes to which some disputants will go including the hiring of zhengxinshe or appealing to state actors.¹⁷

The bulk previous research examined in Chapter Two, however, relates to the legal effects of extramarital intimacy. This research is the work of the opponents of criminal adultery.¹⁸ Because of the surfeit of empirical research on law and extramarital sex (intimacy) in Taiwan, this research is the best place to start, but it too exhibits some of the deficits of doctrinal research even as it expresses social concern. It seems at times that in their haste to decry the criminal adultery statue, some opponents put forth views that make it difficult to conceptualize the role of the law in out-of-court

bargaining. For instance, the assertion by some authors that adultery is rarely

prosecuted and is therefore unnecessary and should be repealed implies that disputants do not use the law in other ways. The oft-hear gender-conscious assertion that when adultery is prosecuted “men to get off Scott free” and create a “war between women” (

丈夫全身而退，變成兩個女人之間的戰爭) indeed reflects a troubling social reality, but would seem to elide the nuances of out-of-court bargaining, for instance, the possibility that charges are dropped against husbands not because they are forgiven per se, but because these men are more capable of making sizeable monetary concessions to avoid prosecution. Thus, we must rethink the assertions of previous research in order to make way to consider the broader and more diverse influences that the existence of criminal adultery holds for intimate disputes.

17As we shall see,the difficulty of divorce can function in multiple, complex, and overlapping ways.

Namely, a disputant may use the law and state actors to maintain a marriage even when both parties wish to end the marriage in order as a sort of leverage in the bargaining over the allocation of various assets and resources. Furthermore, for personal, cultural, or other reasons, a spouse may which to “forcibly”

maintain a marriage in perpetuity even though he or she has no intent of continuing to cohabit or with his or her spouse, continue or ever resume shared life on a daily basis.

18 In fact, it is nearly impossible to find a law scholar or jurist writing openly in support of criminal adultery. This is somewhat unfortunate situation when one considers that intellectually productive debates on contentious issues most often have two or more explicit sides.