| This thesis is a thorough study of the issue whether or not there existed civil law inChina. After undertaking a research in the legal history field in the past years through mass historical materials in addition to the official statutes, the author of the essay has concluded that in the legal history field, a great deal of historical materials are sufficient enough to illustrate the fact that in ancient China there, beyond doubt, had prosperous national and international trades, and that the historical facts prove that a large number of regulations applicable to acts and rulings to adjust the social relationships concerning trade did exist correspondently.To view from the civil law sources in its substantial sense, not only can one discover the positive system of the proper civil law in ancient China, but also can generalize its specific mode of regulation, which, undoubtedly, will demonstrate a great realistic significance for the codification of the Civil Law Code of China.Through the study on whether there existed civil law in ancient China, this thesis concludes that the study of the legal history beyond the positive law in recent years through numerous materials has demonstrated that, since ancient China undoubtedly prospered in domestic and international trade, and it is also beyond question that there existed a flood of rules governing those relations, as long as people can look at things from different angles and observe the sources of the civil law in practical sense, they can not only find out the existing of the proper civil law in ancient China, but also its special mode of regulation. This surely means a lot for the current codification of the civil law in China.This First Part of this thesis investigates the proper norms regulating civil acts in ancient China, which comprises Chapter One "The Development and Characteristics of the China Law System", Chapter Two "The Exploration of the Sources of Chinese Proper CivilLaw" and Chapter Three "The Mode and Cause of Formation of the Chinese Proper Civil Law".Through the study of the origin, the development and the characteristics of the China law system, particularly the comparison of various theories concerning the China law system, from these theories alike yet with minor differences of each having its own emphasis, we can induce a general understanding of the characteristics of the China law system. To mention a few, they are usually so-called "introducing Li into law, then mix them together"; "taking kindred as the basis, turn ethic into law"; "procreate cases by quoting the law, and assist the law with precedents"; "control the official before governing the people"; "administration, with no exception, has its order and mode"; "Imperial government does not implement its administration without considering the present"; "various law systems are combined. Stress punishment and care little of the people" etc. The author, commencing from the origin of the proper civil law, proceed to explore the source of the Chinese proper civil law. The essay has demonstrated that if there was a merchandise exchange, there certainly existed the behavior norm of the market activity by all means. Similarly, China's ancient civil law is just the statements representing its social and economic conditions in codex form.Chapter Two has also particularly pointed out that an understanding of various sources of China's proper civil law will be a key to a better understanding of the proper civil law in ancient China.Ancient China's "expounding the classics and explaining the codex, introducing the courtesy into the norm" are regarded as a summation in ethics, morals and the social norm, which is a special form of law aiming at regulating civil lex relations. Kindred norm was a basic behavior norm in agricultural society, which doubtlessly, displayed a role of stabilizing private property and regulating personal relations. And these two are an important complementary form to the national laws in ancient China. The traditional common law primarily throug...
|
PDF Full Text Request