Lifeblood Of The Civil Code

There has never been a separate and statutory civil code in ancient China. The modernization of civil litigation stated from the end of Qing Dynasty. Government at that time had to follow the success experiences from the foreign countries in order to enact Civil Code as soon as possible. Questions had to be answered before this great construction -was a Civil code which was based on the foreign legal experiences and the rules adaptable to the Chinese social context? How could it be possible to make it work? The Ministers in charge of the enactment suggested that it be necessary to learn about the local tradition and social environments in order to make the proposed Civil Code effective. Following that suggestion, the first large scale investigation on custom kicked off.Government operated several investigations to deeply find out customs existing in the social life at that time. However, there were still problems after customs had been collected and studied. Was customs given sufficient significance and expressed? How was the relationship between the customs and civil legislation? Have the investigations on custom any impact on the civil legislation? In what degree Civil Code absorbed and transposed rules on custom? Are those customs which had been transposed into Civil Code the applicable in the judiciary practice and has thosecustoms affect the development of enactment of Civil Code?The subjects of this thesis are customs, investigations on custom and modernization of civil code in morden China. There are several purposes:1) to review customs in earily 20th century;2) to re-observe the impact of investigations on civil customs and its historical implications;3) to speculate the relationship between civil custom and civil code to re-evaluate its worth and merit; and4) to generalize and thus provide positive experiences and practices to investigation and promotion on civil custom taken nowadays.Custom is what the average usually does, which has nature of multi-differences, relatively independence and indistinctivness. Custom and customary law has rather negative impact on litigation. "Draft of Great Qing Dynasties' Civil Code" recognized the customary law as one of sources of law. Republic of China's "Dratf of Civil Code" took the opposite view. In "Republic of China's Civil Code", customary law regained its position as one of sources of law. We can see here this process is compatible to fundament of materialistic dialectic, The author-considered that how to deal with the relationship between custom and litigation was the essential problem to be solved during the enactment of civil code. This problem is not only related with how to connect between tradition and modernization, but also decisive to the concern whether civil code can work smoothly in the real life. Even more, it will decide, to some degree, whether or not the enactments of civil code will success.Investigation is crucial to learn and study civil customs. Two large scale inverstigations taken in earily 20th century, which obtained many support from local government and department concerned, therefore a large amount of reports and materials, which, however, is missing due to the bad conservation, the major reports and materials as regard inverstigations taken during were gathered primarily in two books. Researchings on these two books shows that customs and investigations concerned have great positive effect on transposing the civil custom into litigation and judiciary practice.Besides general provisions on the relationship between custom and law, "Draft of Great Qing Dynasties' Civil Code", Republic of China's "Dratf of Civil Code" and "Republic of China's Civil Code" stipulate that customs had priority over general provisions, namely randomicity provision. Such provisions demonstrated the position of custom as source of law during the revolution of civil code enactment. During the time of "Draft of Great Qing Dynasties' Civil Code", the number of randomicity provision was limited, many of which...