"civil Code Of The Republic Of China In The Habit Of Study (1927-1949)

With the codification of China's civil law, the relationship between law and custom is always attracting a lot of attention. It will be of great use for providing reference for the legislation of our civil code to study the factors of customs in the civil code in the history. The thesis is trying to conduct some research of the"Republic of China's Civil Code"for acquiring some inspiration in this area.The thesis is divided into six parts:The first part is the introduction. It explains the significance of the research; and the summarizations, definitions, materials of the previous researchers; and the methods of the whole thesis. It indicates that the relationship between law and custom is a traditional proposition in the western legal theories. Almost all the famous theorists in different periods have theoretically thought about this issue. Custom is important to the codification of civil law. In China, there is a tradition that the civil code is integrated with the criminal code, and the country has a preference to the latter. China's civil code began its modernization in Qing Dynasty and there have been three codifications of civil law."Republic of China's Civil Code"is more improved and mature in legal provisions and theoretical framework than the previous two versions before. It is of important referential significance for constituting the civil code of our country to study the"Republic of China's Civil Code".According to the review of definitions of custom in the east and the west, the definition of custom of the thesis is defined from the regulating levels.The thesis finds its proposition with the basic method of text analysis of the relative materials; and the thesis also uses historical analysis and comparison analysis methods.The second part is the summary of the legislation of the"Republic of China's Civil Code". It involves the process and soul of the"Republic of China's Civil Code", and also its fundamental principles to treat customs. This part talks about the"Republic of China's Civil Code"of 1820s which was drafted and passed in separate parts through the whole process of confirming the principles, drafting the provisions and the voting through of the provisions and the whole law in 2 years. It used Three People's Principles as its spirit, prescribed the scope of application of custom, and confirmed for further that the application of custom in the civil code shouldn't conflict with the public stabilization and goodwill traditions.The third part clarifies the customs in debt part. It chooses the interest, intermediacy and guarantee customs, and pointed out from interest aspect the"Republic of China's Civil Code"restricted the heavy interest exploit in the society, but at the same time it also permitted compound interest under certain situations. It was a phenomenon of capital credit. The intermediary in the custom had their own unique characteristic, and they were very important in facilitating the business activities. As the"Republic of China's Civil Code"confirmed the right of the intermediary, it also had a clear and detailed regulation of his obligation. The traditional guarantee custom could be divided into the normal guarantee and the specific guarantee, and the"Republic of China's Civil Code"denied the normal one, because the differences of credit views and the development of economy.The fourth part clarifies the customs in real right part. This part chooses neighborhood,"two ownership of one farmland","pawn activities"and preemptive custom. It demonstrates the civil custom of the Chinese neighborhood has characters such as plentiful contents, rural regulation, interdependent behaviors and reasonable consequence. When the"Republic of China's Civil Code"recognized a lot of civil customs in the neighborhood, it also denied some others."Two ownership of one farmland"has the character that the ownership and the right of lease are separated completely. The owner and the renter are independent to each other, and the renter could sublease the land to others freely. The code constituted emphyteusis through confirming the permanent farming right of the land, and then denied the right of subleasing, so in fact it denied the"two ownership of one farmland"custom. In"pawn activities"custom, the pawner gave the pawn to the pawnee, and the pawnee paid pawn price to the pawner and kept, used and benefited from the pawn. The power could got the pawn back after the time limit. The code confirmed and protected the right of the pawnee, and also restricted the pawner's right through the time limit and the times of ask for redemption. In fact it changed the core meaning of the pawn activities. The pawn mechanism and custom have changed a lot after that. Preemptive custom were for cognation, neighborhood, pawnee and renting. The code denied the preemptive custom among the cognation and neighbors for accelerating the economic circulation and development.The fifth part clarifies the customs of the family and inheritance part. It chooses the engagement, early marriage and inheritance of female for study. It pointed out that the traditional engagement custom was according to the parents'willing and the matchmakers'introduction, and the emphasis focused on betrothal gifts. The code endowed the freedom of engagement to both male and female, and built up a new system. For giving male and female equal rights, the code confirmed women's same right of inherence as men. But the law comes to a compromise on early marriage.The sixth part is the conclusion. It demonstrates that the"Republic of China's Civil Code"tried to absorb and confirm some customs, compromise on some customs, and for more customs it changed and reconstructed them completely. So totally the code designing was to be adapted to the commercial and modern society. Form the analysis, we could see China's traditional civil customs are closely related with the economy, culture and history, and it presents regionalization and diversity in character, nonstandardness and personification in form, rural and ethic in feature. It is a phenomenon of smallholders economy. Nowadays, when we try to construct and improve the socialistic market economy, we still need to persist in ruling the country by law and the leading position of the law. At the same time, we should also observe that the traditional customs have their own rationality, and grasp the particularity of them for complementary uses, and treat different customs in different ways.