The Inheritance Of The Familial Propery And Lawsuits Concerning It In Ming Dynasty

The current research focuses on the institutions of the inheritance of familial property in the Ming dynasty. We will discuss the potential relationship between identity and family property in several major ways of family property inheritance, such as legal inheritance,testate inheritance,inheritance of adopted heirs. For this purpose, we will manage to find the characteristics and rules of the development of Chinese traditional inheritance system of familial property. Furthermore, we also hope to make the inheritance system of familial property as an important perspective to observe and study the family economic life and social change in the Ming dynasty. We will integrate the family inherited property law in the Ming dynasty with the available reords and documents of cases, in order to study the specific application of the law, judicial recognition of the family property inheritance rules, and the judicial philosophy throughout the cases settling the proprietary disputes in the Ming dynasty.The thesis is divided into six chapters.This thesis contains six chapters as follows:Chapter 1: family and familial property in the Ming dynasty.This chapter researchs the family structure and the ownership of family property in the Ming dynasty. Investigation into the family structure in Ming is to define the family scope in Ming, and to identifying the relations between family and clan, and between familial property and clan property; studies upon the form of family property in Ming are mainly used to illustrate the causes shaping the ancient form of inherited family property and several basic inheritance rules. This chapter takes the matters in the Ming dynasty as a starting point for further study upon the ancient forms of family property, and points out that the possessory form of the ancient family property has both the characteristics of possessing goods in common within the family, and the facor of the patriarch of a family owning goods personally. The two factors were opposite but interacting between each other. They emplied far-reaching impact on the family property inheritance system in the past era.Chapter 2:legal inheritance of familial property in the Ming dynasty.Separation of family and division of propery were the main form of inheriting family property, because the law provided the definite portions for the family members in the separation , which has the statutory nature. This chapter combines the ways of descent to different family members and their portions to show the close relationship between the family property and the status of family members, and that according to this assumption, the male heads formed the core roles, among those who owned their corresponding identity; and that the identity in the patriarchal bearing, blood and emotions, etc., were the basis of the status concerning their family property.Chapter 3: testate inheritance of family property in the Ming dynasty.There is a sort of disposal by wills in the Ming dynasty through the inheritance concerning family property; but because of the characteristics of the ancient legal form of family property, its unique rules existed. Mainly speaking, the law allows the elders of the disposition of family property by will, which reflects the ’private ’factor of family property; while the wills often being influenced on by norms regulating legal succession was a reflection of having family property in common by all members; and the wills’ effect was hosted by the social and familial ethics of which the legal succession rules were the basis.Chapter 4: Adopting heirs and their inheritability in the Ming dynasty.With the strengthening of the patriarchal system in the Ming dynasty, adopting heirs in families with no issue became more and more common. Based on the "Zong Zi"status in the families without a heir,adopted heirs(嗣子) in family without heirs could generally take the familial property. Just because of the proprietary factor in adopting heirs, competition to be an adopted heir in Ming became a disguised contesting for familial property. In the judicial process during Ming, rules about the order of potential adopted heirs and the method of distributing familial property according the remoteness from father to be inherited in the clan pedigree were established, and it became a practical way to compensate the losers for being adopted as heirs by prescribed portion from familial goods to settle disputes.Chapter 5: Types of lawsuits for familial property and the principles concerning them in the Ming dynasty.In accordance with the types of lawsuits involving family property, this chapter classifies the various kinds of family property involved, especially those lawsuits concerning the inheritance of familial property, in order to sum up ideas and principles of dealing with lawsuits of familial property. Starting from the causes of action and ending to find out the principles for dealing with various cases by justices, we sum up several common judicial dicta, namely, These five principles not only rooted in the traditional Chinese justice philosophy, but also integrated with lawsuits of family property, a special type of litigation. These five principles also collaborated in harmony with the legal form of family property, functions of familial property in the family. In fact, they constituted the settlement mechanisms of disputes concerning familial property in the Ming dynasty.Chapter 6: Familial property, law and society in the Ming dynasty . Familial property inheritance system in Ming is a result of the interaction of the country’s political ideas and social life. There were several factors such as the strengthening of the patriarchal order during the late feudal era , the rapid development of productivity, the increasing prosperity of commodity economy, and they influenced the family structure, the forms of familial property and the inheritance rules. This chapter takes the social life in Ming as a background, studies the historical background of the family property inheritance system, the family changes in ethics and social institutions reflected by the family property inheritance system.The current research, by the analysis through the aforesaid six chapters, summarizes the influence of the ancient Chinese form of family property upon the inheritance system in the Ming dynasty, and by combining it with the social background of the Ming dynasty, this thesis extracts the development of the internal thread of the family property inheritance system of Ming dynasty: the strengthening of the patriarchal system and the highlight of the human emotional factors; the independence of family property and the expansion of clan property; orthodoxy ideas continues to stress the concept of total wealth and the possession of familial property in common , while family Separation and property division had been becoming nomal, and the family property transactions were becoming increasingly frequent. The phenomenon was the result of the interaction between the highly development of feudal despotism and the rise of the commodity economy and the concept of private property.