Marketization And Industrialization In The Early Period Of The Republic Of China: Judicial Adjustment Of China 's Financial Order (1912-1927)

How to evaluate relationship between legal system and industrialization in the early Republic of China,i.e.,how to evaluate substantial results of financial law in early Republic period,is an important issue need to proceed to study,not only by economy history scholars,but also by financial law scholars. The dissertation try to resolve it by a jurisprudential approach.The dissertation comprises forward,conclusion and seven chapters.The forward delimits the concepts of finance and order,then constructs a analytical framework of the financial order comprising five key elements including currency,credit,interest rate,market and organization.ChapterⅠthrows light on the contradiction between the industry-oriented construction of financial order by paper rules,and the public finance-oriented deconstruction of it by governmental actions,and try to reveal the cause and consequence of the financial uncertainty in the early Republic era,such as unstability of currency price,low credit,abnoramal high interest rats,low market integration and small capital scale in traditional financial organizations,which are regarded to hinder industrialization.Chapter Ⅱproves that the predictability and authority of financial adjudications by Chinese modern courts were high enough to restore peoples expectation about financial order. Cities and ports of China are the birthplace of Chinese modern industry,the concentration areas of foreign capital in China’s industrial investment,and the coexistence place of Chinese modern courts,mixed courts and foreign courts. These courts,were all based upon the principle of procedural justice,both gave priority to commercial trial,and tried mixed cases relating to debt. Chinese courts not only competed with the other courts for more cases to try,but also learned adjudicative skill from them. These foreign courts often took Chinese supreme court’s decisions as precedents,some foreign layers also asked Chinese supreme court to explain difficult questions,and Chinese supreme court often referred to cases made by international mixed court and other foreign courts. Therefore adjudications in financial disputes by Chinese morden courts were gradually predictable,so Chinese court ’s authority was recognized by the foreigners. The principle that general claims are met equally were established among the cities,ports and hinterland,not only by Chinese supreme court and its subordinate courts,but also by Chinese court for administrative lawsuits. Supreme procuratorate and District procuratorate investigated several important foreign debte cases which some finance,foreign and justice ministers were suspects,gained their authority.The ensuing chapters elaborate and analyze in depth the five said issues which was left to judicial adjustment.Chapter Ⅲdeliberates how and why did Chinese supreme court establish the rule that when the currency’s price is unstable,a debt due should be paid off according to currency’s price on the time of formation of the contract.Chapter Ⅳ elaborates that Chinese and foreign courts standardized financial credit by preventing banks and bank supervisors from interference of central and local governments,by punishing offenders forging currency or commercial papers,and by standardizing customs and usages regarding commercial papers in different localities.Chapter elaborates that the new meaning of the provision prohibiting Ⅴpracticing usury in the part of Ta Tsing Code,which was not repugnant to the principles and morals of the Republic and still enforceable in early Republic era,is to promote the formation of an average industry profit.Chapter Ⅵproves that sale short or buy short was prohibited by the valid part of Ta Tsing Code,but Supreme Court Decisions and Explanations limited the prohibitive norm’s application,by very restrictive interpretation that if contracting purpose without delivery spot,the contract should be invalid, to encourage trade,to set up legal space for the free development of China’s financial market including securities market and commodity future market.Chapter describes that ChⅦ inese supreme court made some decisions to change the partnership liability rules making partner’s liabibility more heavier and uncertain, and explanations several problems about application of company code to promote financial organization to transform from partnership to company.The final conclusion is that the market-oriented judicial adjustment of financial order, was an impetus for the Republic industrialization’s golden era.