Research Of Traditional Chinese Civil Contract Format

Civil contract is the carrier of the property relationships and personal relationships in the real social life. It embodies the existing state and the operation mechanism of the society. During the far-flung practice, the civil contract behavior has been under the regulation of both state laws and the civil customs, and gradually the contract with strict and precise structure appeared. Taking the civil contracts in text from Xizhou to Ming and Qing Dynasties as example, the article lists systematically the transforming process of the format of traditional contracts, analyzes the conflicts and coordination of the state laws and the civil customs in this process, and demonstrates the characteristics of the "fixation" and "identicalization" trend in the development process of the contract formats.In Chapter One, the article introduces that the period from Xizhou Dynasty to Song and Yuan Dynasty is the period of creation and primary fixation time of the civil contract format. To the period of two Hans, the rudiment contract with comparatively complete elements appeared in the transaction contract. After Wei and Jin Dynasty, the paper had been widely used in drafting one contract, which caused the usage of "danqi(one simple textual contract)".And at the same time, the dispute settlement articles emerged. In Dong Jin Dynasty, for the purpose of controlling the tax, the government then put the contract tax policy into practice and the "red contract" was known as the official contract. Succeeding the legislation experience of Wei and Jin Dynasty, the Tang Dynasty enhanced the control of the civil contract and applied the policy of "asking for permission"( one kind of policy that specific seller should get the license or permission first to form one transaction contract.) Consistent with the former dynasties, in Song Dynasty, the "standard contract" was promulgated ,which tried to unify the civil contract format. When the transaction of houses happened, the custom of "appropriate separate accounts and ask for relatives' opinions" was approved by the state laws. In the times of Song and Yuan Dynasty, the private -compiled model contract format was widely used in the transactions from the land selling to the area of marriage, which shows the trend of "fixation" of the civil contract.In Chapter Two, the article introduced that the contract was frequently used from the land renting and transaction, breaking up the family and living apart, to the marriage and many other civil areas in Ming and Qing Dynasties. The format of the contract was becoming complete, and therefore there appeared the trend of "fixation" and "identicalization" of the essential elements in the introduction, body and conclusion part of the contract. In the land ownership, private possession was the main form of the system of ownership in Ming and Qing Dynasties and "emphyteusis" came into being in the practice of land renting. With the development of the commercial economy , the rights in land gradually divided into the "lower land right" and the "upper land right", and the two kinds of rights can exchange freely, which causes the two kinds of contract format called "big contract" and "small contract". Because of the weakness of the contract tax in the land transaction, there appeared "lively sell"(pawn)and foreclose, two totally different kinds of contract format, and from "lively sell" to foreclose, the custom of "compensation(the creditor pay the extra money as the temporary price of land to the debtor)" formed. Meanwhile, the article analyzed the differences among the three kinds of contracts of "real property pawn contract", "lively sell contract" and "pawn contract" in the process of the transaction of lands and houses. In the process of breaking up the family and living apart, the "breaking up contract" and "living apart contract" are two methods to divide the property. The "breaking up contract" followed the principle that male heir get equal parts, it should be drafted by the respected old or agreed to by all the male heirs. In the contracts related to marriage, there existed the women marrying contract and the man marrying into contract(which means he will live with the wife's family).For the women marrying contract, it can be divided into "marrying contract" and "marrying and selling contract", and both formed fixed format. Succeeding the civil practicing habit and legislation experience in Song and Yuan period, it has constructed the core of the traditional civil contract idea and system.In Chapter Three, the article demonstrated that the contract had made people create drafting contract habits frequently in the blood ethics society and analyzed the reason.In the aspect of inner function , the contract was built under the idea of belief, justice and interest and the form of introduction(including the parties, the drafting aim and the impartial person who is supposed to be a witness with authority), body (including the target thing, exchange price, rights and duties and the guarantee)and conclusion(including the drafting time, signature etc.).As for the applied circumstance, taking the renting habit of the Xizhou area in Tang Dynasty as example, the article analyzed the operation state of the state legislation and civil habit and showed the character of toughness and practicability of the civil contract habit.In Chapter Four, the article introduced that the parties are the carrier of the rights and duties, made up by drafter and acceptor .And the article summarized and classified the traditional contract parties.The qualification of the drafter has many limitations, for example, in the practice there are "master and slave" drafter, "female alone drafter" and "same drafter" which includes the same son, brotherhood, couple, cousin, uncle etc.. It demonstrated the limitation to the behavior ability of the state legislation and civil contract because of the status and the family unity. The acceptor in the land contract were usually nobleman and businessman, which is closely connected with the state of gathering living, the policy of "appreciating agriculture and restraining the commerce" and the protection to realize the aim of the contract.In Chapter Five, the article introduced the classification and characteristics of the reason for accomplishing contract, which is one essential element of the contract format. The reason for accomplishing contract is the trading aim of the parties and the inalienable judging criterion for the effectiveness of the contract. The reason for accomplishing the contract was formed from Song and Yuan Dynasties and was widely used in Ming and Qing Dynasties. According to the objective situation and the subjective reasons, the reason can be divided into seven groups as follows: the state tax burden, operating inconveniently or using conveniently, family misfortune, operating badly or hard, historical left-over or other reasons. In the civil contract customs, "the reason for accomplishing contracts" appeared the trend of unification of the contents and the district application. These reasons reflect that the drafting of the contract is not out of one's own accord, yet they have the function of helping emergency, which shows the salvation character of the civil contract in traditional society, and thus the civil activity naturally is passive.In Chapter Six, the article demonstrated the special "impartial person" mechanism in the traditional civil contract system, and almost all kinds of contract with the joining and signing in the end of the contract of the "impartial person" during the drafting process. Different titles in the history shows the complex subject status in the reality. And the impartial person, as the involving party of the civil contract, carries the witness, guarantee, and assessment of the price and other assisting functions of the contract. In the ethics society, the role of the impartial person usually was played by the relatives or the neighbors, which makes the role has the character of non-professional, non-profitable and with obligation. Therefore the impartial person became one spontaneous dispute solving mechanism when the state power cannot supply comprehensive salvation to the parties of the contract.In Chapter Seven the article introduced that revelation and elaboration of the persistence and development of traditional civil contracts in modern society. At the end of Qing dynasty when the idea of constitutionality was first introduced to China, the environment to apply traditional civil contracts was destroyed and the practices were shattered on the whole. However, China didn't sort out these civil practices systematically in its modern legislation and because there's no significant change in economic foundation, political system, and social awareness, state legislation got adrift from civil practice. This is how the form of traditional civil contracts has been completely preserved. After the founding of People's Republic of China, the implementation of state legislation has been enhanced to an unprecedented level through communist reconstruction and the setup of grassroots political units. With the advancement of socialist market economy and the improvement of civil legislation, the application of traditional civil contracts has been narrowed down. At the present stage, state power still can not be carried out without defects and with the huge influence exerted by blood bonds and the constant transformation of its form taken into account, the traditional civil contract is still highly efficient and applicable in China, especially the rural areas. In this sense, traditional civil contracts have been integrated into modern legislation and become the second legal mechanism acting in parallel to the national law.The disconnection of legislation and practice of traditional society leads to the unceasing development and self-improvement of civil contractual practice and even to a complete applying system of civil contracts. The internal idea and external rationality of traditional civil contracts made sure of its implementation in ancient China where morality was highly valued. Today traditional civil contractual form still shows its practical value in the course of legislative transformation and construction in modern China with its inherent rationality of pragmatism and is well accepted and observed in some special fields.