A Study On Commercial Law Legislation In The Republic Of China (1912-1937)

As far as the legal system is concerned, the modernization ofChinese legislation commenced at the end of the Qing Dynasty,accelerated in the early period of the Republic of China, and wascompleted after the National Government of China (1912-1949) wasfounded. It was in this period that the Chinese society started its transitionand transformation from a traditional regime to a modern one. Themodernization of Chinese legislation coincides with the evolution fromthe traditional legal system to the modern one. This evolution isepitomized by large-scale law modification and legislation, graduallyleading to laws and regulations characteristic of modern nature. As far asideology is concerned, the evolution is shown by the stepwise acceptanceof Western ideas of rule of law. As for legal theories, the division ofpublic law and private helps bring about a deeper understanding of thelegal system.The commercial law legislation in the Republic of China (1912-1937)not only inherits the results of commercial law legislation at the end of the Qing Dynasty, but achieves some innovation and development of itsown. On the basis of previous research, delving into historical archivesand analyzing the academic works of various periods, the author adopts inthis dissertation both historical and contrastive methods to probe into theprogress, events and achievements of commercial law legislation in theRepublic of China, with an aim to supply more insights in this regard.In this dissertation, the achievements of commercial law legislationin this period are summarized as follows.First, the commercial law legislation in this period is an importantphase in the modernization of legislation in China, in which thesystemization of commercial law was completed. When commercial lawwas being made at the end of the Qing Dynasty, the government, on theverge of an overall collapse, followed the principle of "commercial lawfirst", rendering the idea of "trade war" the theoretical basis forcommercial law legislation in this period. In the last few years of theQing Dynasty, the commercial law legislation became a part of theso-catted "preparation for the constitution", aimed at transplantingWestem political and legal systems into China. But essentially, thecommercial law legislation in this period was still restrained within theframework of the feudal system. Despite efforts to adapt legislation to thereality in China, the goal of "referring to laws of various nations andmaking laws with scrutiny" was not accomplished due to pressure of thepolitical situation at that time. Commercial law legislation in this periodwas merely a transplantation to meet the emergency. In the early years ofthe Republic of China, in spite of political turbulence and the severeconfrontations between progressive and retrogressive forces, the republicregime was nevertheless retained, and the capitalist relation of productionwas initially established. The commercial law legislation in this periodhas been included into the legislative activities of the Chinese bourgeoisie.In this period, the commercial laws made at the end of the Qing Dynasty were inherited, and the General Rules for Merchants and the Rules forCorporations were promulgated. Moreover, drafting working has alsobeen done in such areas as negotiable instruments law, bankruptcy law,maritime law, insurance law, the results of which have been referred toand cited in judicial activities. In terms of content, the commercial lawlegislation in this period made a giant step forward transcending itspredecessors. The founding of the National Government in Nanjing putan end to melees among Chinese warlords and to the division of Chinainto two. halves, achieving a formal unification of China and providingthe political basis for commercial law legislation. Starting from 1928, theNational Government revised and formulated commercial laws such asthe Corporation Law, the Negotiable Instruments Law, the BankruptcyLaw, the Maritime Law, the Banking Law, the Insurance Law, and theInsurance Industry Law. The systemization of commercial law legislationwas finalized within the civil-and-commercial law framework, hence themodernization of Chinese commercial laws.Second, the commercial law legislation in this period includes themain aspects of commercial legislation. The Corporation Rules, enactedat the beginning of this period, expanded the types of commercialactivities, established the legal person status of companies, and, followingthe continental law system, stipulated the forms of corporations andprovided detailed regulations for their financing means and internalgovernance. The Corporation Law highlighted the profit-making natureof companies, and greatly enriched such concepts as "share-holding bylegal persons" and the limited-liability company system. The draft of theBankruptcy Law of this period emphasized the style of compilation,including such areas as bankruptcy petition and bankrupt's estates.Excelling its predecessors in terms of both style and content, theBankruptcy Law adopted general bankruptcy while considering Chineseconventions, providing regulations in almost all aspects of the bankruptcy system. The draft of the Negotiable Instruments Law of this periodunderwent five revisions, paving the path for its successors by adopting acharacteristic format that combines bills of exchange, promissory notesand checks, and by strictly distinguishing bill relation from cause relation,to conform to the general trend of negotiable instruments legislation. Themaritime law of this period inherited the basic content of its Qingcounterpart, but found little application in judicial practices despitegovernment promulgation. The Maritime Law began to take form bymaking reference to international conventions and maritime laws of suchnations as Britain, the U. S., Germany and Japan. The Insurance Law hasinsurance contract law as its core, imitating the styles and content ofWestern nations and including both insurance contract law and insuranceindustry law. The law not only defines liability insurance, life insurance,property insurance, but provides terms of insured interest, reflectingoutstanding legislative skills. Finally, the apparent progressiveness of theBanking Law made in this period is shown in its regulations regardingdivision of business, bank supervision, etc.Third, the private law spirit is implemented in the commercial lawlegislation of this period. After the Revolution of 1911, Chinese societywas plunged into a transition period when old ideas came to be replacedby new ones. For one thing, the idea of "saving China by developingindustry and commerce" was upheld by national bourgeoisie, thus powerorientation, free competition and restraint of privileges became thebourgeois merchants' appeal for rule of law. Therefore, the commerciallaw legislation of this period mainly involved adjustment of merchants'profit-making activities, which was an affirmation of the subject andactivity of doing business. For another, either the idea of "nationorientation" promoted by the Northern Warlord Government (1912-1927),or the idea of "society orientation" propagated by the NationalGovernment in Nanjing (1927-1949), posed challenges against the private nature of commercial law legislation. The idea of "nation orientation" isbut a pretext for the warlord government to confine the freedom of thepeople, the rights of the Chinese bourgeois, and to practice politicalautocracy and economic monopoly. The idea of "society orientation",however, is more complex in that the original Three People's Principles(nationalism, democracy and the people's livelihood) put forward by Dr.Sun Yat-sen had been substituted for an amulet for national monopoly andfamily business. Nevertheless, the private nature of the commercial lawlegislation in this period was generally retained, in that the main purposeof legislation was still to protect the fundamental rights of merchants andto maintain the facility and security of trade, providing legal guarantee forthe development of national capitalism in China.The body part of this dissertation consists of four chapters and aconcluding remark. The first chapter, from the perspective of politics,economy, ideology and culture, probes into the motivation forcommercial law legislation in Republic of China (1912-1937), andcompares the motivations for commercial law legislations in differenttimes. The second chapter analyzes influence of the commercial lawlegislation at the end of the Qing Dynasty exerted upon its successors inthe early years of the Republic of China, describing the main content andfeatures of the commercial law legislation in this period, as well as theinteractive relationship between government and the people in.themeantime. The third chapter delves into the establishment of thecivil-commercial legislative style during the regime of the NationalGovernment (1927-1949), with a detailed discussion on thecharacteristics of that era and the major aspects of commercial lawlegislation in that period. The fourth chapter evaluates, from a broaderperspective, the historical stature and achievements as well as thecharacteristics of the commercial law legislation in the Republic of China(1912-1937). In the light of the experience gained in this period, the concluding remark foresees the path for the development of commerciallaw legislation in China.