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Culture Interpretation On The Legal Institutions And Custom Of Guarantee

Posted on:2008-03-18Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y ZhangFull Text:PDF
GTID:1116360215953140Subject:Legal theory
Abstract/Summary:PDF Full Text Request
Hypothecation institution is developing with the human society which process from savage to civilization. As an institution, it was very important in the law system of each country. And as a custom, it also plays a remarkable role in people's life. As an important ways of hypothecation, hypothecation by people had its embryonic in the Roman law which was more than 2000 years old. From the materials on regulations and customs in ancient China, we can found lots of information about hypothecation institution and the activities of guarantor. So it has significance to know how can the hypothecation act in the Chinese culture.Since the guarantor is a particularity question in China, this paper was on the culture character and significance of guarantor. And it was mainly about the guarantor in ancient China, contrasted with the hypothecation by peoplein Roman law. This paper put the research of hypothecation by people in the regulations and contracts activities under the culture vision, analysis the history, tradition, opinion and culture of hypothecation by people.This paper include five parts.Chapter 1, outlined the hypothecation by people and guarantor. Firstly, it analysis the connotation of hypothecation by people. On the base of that, it contrasts the connotation of hypothecation by people, and its expression in law and contract activity. It also concluded the history process of hypothecation by people and ways of its expression in contract. And it interpreted the guarantor as the main parties of hypothecation by people. It gave a full expression on guarantor's name, his relationship with other people, his situation and its society evaluation.Chapter 2, interpreted the culture of hypothecation by people through law regulations. It mainly made examples of load contract in ancient China, which was more typically. This part statistics and analysis the quantity and frequency of hypothecation by people and hypothecation by goods. On the base of that, it mainly interpret the load contacts in Dunhuang Times which preserved large amount of original manuscripts, and concluded that the frequency of hypothecation by people appeared more than that by goods. It also described the actual situation of hypothecation by people in the society, located the important position of hypothecation by people in the hypothecation system. And finally, it explains the distinct function and exclusive position of hypothecation by people in culture range.Chapter 3, interpreted the culture of hypothecation by people from the regulation of law. In Roman Law, according to different obligation which guarantee assumes, it can be classified as general guarantee and joint guarantee. According to number of sureties, there are one guarantee and common guarantee. On the contrasting of Roman Law, the guarantee in the regulation of ancient China were general guarantee. It reflected in cases of debtor escaped or debtor could not pay off. Besides that, joint guarantee always reflected in the way of many people as guarantor. When there several guarantors in one guarantee, the ordinary way is to equal liability, not common liability. This can be looked as the most differences between ancient China law and Roman Law. Finally, this part also analysis the guarantor's qualification, status and how can the guarantee be effective in the range of culture. Chapter 4, interpreted the culture of hypothecation by people by contract activities. Contract was the real recording of people's law activities. It is the sign of the right and liability relation between persons. The informal institutions, such as rules, convention and tradition which formed in contract activities, sometimes obey the regulation of law, but other times violated the law. Through the study of guarantee contract and the materials on traditions, we can saw the people's realization and comprehension in that time, and we can also know something about the people's idea and consciousness of law. On the base of that, can we know more about the culture of hypothecation by people. As the special parties in contract, we thought they was another ways of guarantor. According to the relations between the guarantor and debtor, we can see that at the beginning, the guarantors were always the family member, and slowly the guarantor can be person outside the family. And then, it study three ways of relations between guarantor and debtor, they are relatives, neighbour and interest. Sometimes the surety may have some status or were monks, they always had good credit. Besides that, it analyzed the age and quantity of guarantor. In contract, there were large amount of rules on the liability of guarantor, such as pay the debt and the interest. The core problem is the validity of the guarantor's liability. The ways were different from one another, the reason maybe the difference between cultures.Chapter 5, further analyses on the culture of hypothecation by people. On the base of the former parts, it contrast the two ways, and went to the conclusion that in the regulation of law, put much attention on safety and paying back. But in the contract activities, people put more attention on the credit and helpful. Though these ideas are different, they sometimes connected with each other. The relations between them are same, supplement, different and violate. The reason maybe the relation between the main culture of governor and the culture of ordinary person. Therefore, this paper not only described the exist patterns of hypothecation by people institution in ancient China, but also analyzde it in culture range. During the contrasting of hypothecation by people and by goods, we can easily see that Chinese people prefer more by people than by goods, traditionally. This has much relation with the sympathy facts of Chinese culture. So hypothecation by people has a unique and important status in Chinese hypothecation system. The ideas that concealed in the regulation and the contract activities have more meanings to the constructing hypothecation system.
Keywords/Search Tags:guarantee, hypecation by people, legal institutions, Culture
PDF Full Text Request
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