| Jitian(Offering—sacrifice—to—land)iS a sort of property peculia r to China,which becomes the economiC basiS for preserving patriarch al system.With the introduction of modern western laws,how to apply thiS Civil legal system and theory to regulate the offering system becomes a real challenge.It iS a miniature of a mix between western civil 1aw and Chinese traditional CiVil convention.In the first chapter,the research meaning is expl icitly defined, that is,selecting the case of Jitian as a study sample,so that the practice and feature of those judicial authorities at basic level du ring the Republ ic of China(1912—1949)are to be surveyed.As far as category is concerned,Jitian system iS only confined to the case ofsacrifice in terms of patriarchal clan.By clarifying some concepts closely related to Jitian,such as clan property(1and),holy land,sa crifice land,grave—protecting land,and grave land and SO on,Jitian can be defined.After summarizing the documents,the author finds th at most researches on Jitian are from macroscopic instead of microsco pic perspective.ThiS dissertation iS to employ those judicial files in the Republic of China and the cases of Jitian in collections of CO urt document as the basiC research data.Chapter two carries out a comprehensive review on the offering sy stem from historical perspective.The author holds the opinion that s uch a common system has come into being after Zhu Xi era.The revenue derived from Jitian iS not only utilized to pay the expense of offer ing sacrifice,but performs a function of uniting the whole clan.Jit ian iS generally controlled by specially—assigned persons,or control led in turn according to chamber,and the latter is more common.This dissertation reviews the sohtions to dispute over Jitian in the Republic of China.in which it comes to the conchsion that the system of Jitian is a miniature of economic and financial order in traditional society.Such a system reflects the property affinity between indivi dual and clan.In the legal system of Jitian,identify principle domi nates everything,and there does not exist such abstract equal person alities in Iaw.There iS no novel social relationship freely establiS hed by free will,and the absolute utilization of property by individ ual cannot be existed,and there is also no free property transfer ba sed on charter contemporar i l y.Chapter three discusses the reasons that Jitian iS not a joint co—ownership.Jitian's subject of rights is"chamber".and the compo Sition of membership of the"chamber"takes on dynamic changes.Suc h a subject of rights,taking"chamber"as a unit,subjects itself to the frame of law,and thus encounters some practical difficulties, such as the troubles of formalities for title registration and the P rocedure of determining the co—subject of 1itigation.Co—ownership is a kind of title,but the Jitian clique don't have the total title, because according to the traditional Civi l practice,they only posses S the Ius fruenndi from jitian,not the right to disposing property. Practically,the court under Nanjing Nationalist Government allows th e Jitian clique to divide or sell their own share,accordingly,from this perspective,the state 1aw at times identify jit Jan as co—owned property.Chapter four analyses the similarities and differences between ji tian practice and law system.During the Republie of China,Jitian on ce was regarded as legal body.Taiwan(then occupied by the Japanese) enacted laws to establish Jitian as a legal body.SystematicallY.Ji tian has something to do with legal body,because its significance iS not onlY rests on specifiC goods,but it has its unique establishmen t and operat ing rules as wel 1.But from the angle of human factors,t he author finds that Jitian iS something like a virtual form of owner ship after investigating the custodian,establisher,and recipient of Jitian.Take Taiwan as an analyzing case,the author lists some lega 1 obstacles--the properties of law body,independent property of 1aw body and its facultas agendi,by whieh a conclusion iS drawn that thenature of Jitian iS neither co—owned nor iS it the SO—called"legal body",but a kind of clan co—owned property system with Chinese char acteriStiCS.The next chapter sums up the rights of heritor and adopted sons, which holds that heritor shares the same rights as those of son,conv entionally or in judicial practices.The dispute over the rights to o ffer between heritots is actually the validity of heritors'position. The right of'adopted sons iS usually denied by the state 1aw,but co nventionally,it recognizes their rights to offer sacrifice.Judicial organs deny such a right.So the conclusion drawn in this chapter isthat though in order to realize the link to the West,the legislatio n and judiciary in the Republ ic of China recognized the right to inhe rit property by the adopted son,when it came to clan inheritance,tr aditional system and concept were preserved.Comparing to thiS,inves tigation on civil practice shows that the idea of clan inheritance ha S been under some changes i n some places.Chapter six discusses women'S rights to inherit jitian,which iS divided into daughter'S rights and widow'S rights.Compared to the previous situation,daughter'S rights widely expand under the legisl ation and practice in the Republ ic of China.However,their rights ar e st i 1 l restricted.For example.the rights for unmarried daughter ar e higher than those of married.But compared to married or unmarried daughters,the son—in—laws'rights are much higher.Remarried widows no longer possess the right in the former husband'S family,and thos e who stick to the state of widow can take her late—husband'S place to enjoy gains from Jitian.The conclusion in this chapter iS that th e legislation and concept on the property rights for women have chang ed to some extent,and women enjoy higher rights to property.Chapter seven analyzes the extension and alternation of the tradi tional judiCial mode in the Republ iC of China and some features shown in trial of Jit Jan by the basiC level court.Due to the distinctiyen ess of the subject matter in jitian case,it iS more readily affected and protected by the strong tradi t i onal concept.When the contempora ry legal norm conflicts with traditional concept,judges in the Repub 1ic of China tends to preserve the latter,even at the cost of violat ing those val id legal provi sions there and then.However,such a si tu ation cannot last long:modern civi l law extends to exceed the influe rice of traditional concept and becomes the very important verdict evi dence.Moreover,local court iS used to apply what it callS the more suitable verdict evidence,such as theory of law,regulation and clan practice,to try cases.So the conclusion is that during the mix of loan laws and those intrinsiC civi l customs,the latter shows the ine rtial theorem,and there iS an obvious disjunction between the local and the central government.The last chapter concludes that although there exists private eco nomy to some extent in traditional Chinese society and the system ofJitian is one of them,which we can call it"civil 1aw"in the name of modern legal system,private law or civil law can impossible to co me into being, under the predominant particularism structure.The eor e of spirit of Jitian system lose its objective,universal and ration al features,which does not necessari ly follow that such relations ar e not subject to legal adjust,but the laws of adjusting such relatio ns does not have a modern Civi 1 or private 1aw characters. ThiS iS not to say that such re]ations are not completely legal t o adjust,but adjust the laws of such relations does not have a moder n civi 1 or private law character.
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