The Custom And Customary Law In Civil Law Of The Early Republican China

In the traditional China, the right and duty in the legal sense is mainly arranged in the framework between state and society under the influence of Confucianism and patriarchal clan system. Under the political and legal framework of "state in the family", as well as the influence of the spirit of "Ritual", the state and the civil society coexisted harmoniously. The state power has no intention to extend the civil under the county level and leaves a great number of the civil case jurisdiction to the civil society, as a result, the civil society evolves a great deal of civil custom and civii customary law. Alt this was changed during the modern china. What the great social reformation and revolution pursuit , such as "Wu Xu Reformation", "New Deal" in the late Qing Dynasty and "1911 revolution", is the western political system. Their piratical legal system construction method are mainly through legal transplantation from west. Because of the different social basis and the cultural background, the transplanted law can't adapted to the Chinese society and the law in paper is far from the living law. The modern legal system based on this background will meet the resist of the traditional society inevitablely and is hard to accepted by the crowd. How to united the spirit of the modern legal system and the traditional civil custom in China is an important way to study the development of the civii law in the early Republican China , as well as an problem confronted by the legal profession in the early Republican China.This thesis studies the legal status of the custom and the interaction between the enacted law and the civil custom in order to dispose the development of the development of the civil law and the relation between the state and society in the early Republican China, from the perspective of the idea, text and practice, especially centers on the civil custom and customary law.This thesis argues that :he development of the civil law in the early Republican China embodies the characteristic of the transition era apparently through the analysis of the development of the society and the law in the early Republican China. This characteristic explains why a great deal of customary law existed and the rapidly development of the civil law in the early Republican China. It is during this period that the modern legal profession including the theorist, judge and lawyer arise and the knowledge system of the modern civil law established through the judicial reformation and the codification of the Draft of Civil code of Qing Dynasty. Since the Draft of Civil code of Qing Dynasty was vetoed by Senate and the Criminal code i n Effect existed inadequacy severely, the practice of the civil law in the early Republican China keep a state of code shortage all the time, which left a great deal of room for judge. In addition, in spite of the state disorder and the military group indepdence, thesupreme court established its authority in the legal field . The judge of the supreme court the enforced the civil custom in the trial and established the regime brought the civil custom into judicial pratice through the case and explanationAffected by the traditional custom and foreign law, the plural characteristic of civil law appears clearly in the early Republican China. Among all kinds of the sources of the law, custom and customary law play an important role. Even in application foreign law and jurisprudence, the judge in the early Republican China are incline to adopt the custom in China and try to use the modern advanced legal ideat to justify the custom inherent in the traditional China. All this indicate the law in traditional China is interconnected with the transplanted law each other.There experienced a wind course for the legal profession's idea to the status and the role of the traditional civil custom in the civil law. In the early Republican China, all walk of the life paid more attention to the role and influence of the civil custom in the legal field and the legal profession discuss the legal status of t...