Study On The Right Of Dian In Late Qing And The Republic Of China

The system of Dian was a legal way of using land unique to ancient China as well as a“localized”legal resource, and the emergence, functioning and transformation of which is of great significance to our understanding of property law in ancient China and the transformation of modern civil law. This paper compares the system of Dian with its counterparts in western legal systems, as well as the Chinese legal concepts with the western ones, starting from which the development of the system of Dian from its ancient form to the modern one would be also touched upon, in a bid to reveal the rationalization of the legal system of Dian and the process of modernization of the right of Dian. This paper includes four levels of analysis: state legislation, customs, scholarly doctrines, and judicial practice. Both dynamic and static approaches will be used. This paper contains seven parts:The Introduction part elaborates on the reason and significance, current research, time range and definitions of this paper, including also the research method and materials used.The first chapter gives a comprehensive review of the ancient system of Dian. Starting from the origin of the system and state legislation, a comparison between China and the west will be made in terms of the system of Dian, the author also tries to introduce a concept of“Ye”to conclude property right relationship in ancient China, revealing the specific feature of property right relationship in ancient China.The second chapter discusses popular customs in the late Qing and Republic of China’s time, concluding that Dian as a legal system has taken features of customary law. As a right of Ye, Dian, as a customary legal right, fulfilled multi-functions in the society, taking even a leading role in a diversified society. The third chapter explains the legal doctrines concerning the legal system of Dian in Late Qing and the Republic of China’s time. Legal experts during that period of time based Dian upon western jurisprudence, explaining the idea in a diversified way. The existence of controversies over this question revealed a dilemma in basing a Chinese traditional legal system upon western legal jurisprudence, as well as a natural gap between western legal jurisprudence of property right and Chinese ancient property rights.The fourth chapter focuses on the legislation and judicial practice concerning the right of Dian in Late Qing and the Republic of China period. Textually speaking, the author studies the relevant parts in the draft version of civil law of Qing dynasty, and the civil law draft worked out by the Republic of China’s government. In terms of judicial practice, the author focuses on the judicial verdicts made by the Da Li Yuan, or the supreme court of then Republic of China, concluding that judicial verdicts from Da Li Yuan acted as civil rules at that time, pushing forward the integration of customary law about Dian and the western jurisprudence. The chapter five investigates the system of Dian under the reign of Nanjing national government. With the introduction of the Civil Law of the Republic of China, the legal right of Dian was renovated into the usufruct, the modernization of which has finally come to an end. Seen from the aspect of judicial practice, the Supreme Court reinforced the legal regulations in the civil code, enlarging the gap between the legal text and social reality. The drafting of 1944 version of legal rules about Dian right reflected the reconsideration of legislators about this issue.The sixth chapter is a conclusion. The chapter mainly discusses the change of law system and culture in the process of modernization of Dian right, and summarizes experience and lessons of the process, in order to provide historical reference.