| The Research Subject of this thesis is not’The Great History of the Tenancy Relationship during the Qing-Dynasty’, but’The Small History of the Tenancy Relationship’itself, which is from the establishment to the termination of the Tenancy Relationship, during the Qing-Dynasty. This thesis is not only about the textual research and description of the historical facts, but also about the investigation and analysis of the rights and obligations of the Parties. Although the induction of history is the basis of the study, the basic research method of this thesis is inevitably the law method, being the first method of the science of civil law, whilst the second is the method of legal sociology. A new research method and research subject will bring a great difference in the research content. Therefore, to construct the customary law of the tenancy relationship during the Qing-Dynasty is the basic purpose of the thesis. The core content of the thesis, which has long been neglected by scholars, is the condition of the establishment, performance and termination of the tenancy relationship, the relationship of the rights and obligations, the legal consequences and the legal principles in the tenancy relationship.The history of the customary law of the tenancy relationship during the Qing-Dynasty begins with the establishment of the tenancy relationship. The Party during the Qing-Dynasty was clearly not less responsible than the Modern Party, concerning the freedom to conclude the tenancy relationship. However, the autonomy of The Party during the Qing-Dynasty did not include the autonomy of all family members, but was the autonomy of a patriarch or patriarchs which was more than the autonomy of a***patriarch in ancient Rome. Thus, only a patriarch or patriarchs could become a qualified Party, in the tenancy relationship during the Qing-Dynasty. The establishment of the tenancy relationship must possess the essential objective matters. Like modern tenancy relationships, the establishment of the tenancy must also possess two essential objective matters i.e. the land and the rent. A great deal of the tenancy relationship during the Qing-Dynasty needed to have another essential objective matter, i.e. the lease price. The lease price obviously contradicts the current equivalent thought in modern private law. The existence of the lease prices totally reflected, not only the different strength of both parties in customary law, but also a lack of trust. The sporadic intervention of the government does not fundamentally change the status of the lease price as the essential objective matter of all types of the tenancy relationship:.i.e.’the yi-tian-liang-zhu(一田两主)relationship,’ the permanent tenancy relationship and the time-limited tenancy relationship. The form also is a necessary condition to establish the tenancy relationship. The rejection of the statute law and the distrust of the parties for a verbal agreement, resulted, not only in very few cases, in the conclusion of the tenancy relationship during the Qing-Dynasty, but also the loss of the trust as the basic principles in the tenancy relationship. The inconsiderable status of the verbal agreement and the truth in the tenancy relationship, during the Qing-Dynasty, differs from modern law and Roman law. During the Qing-Dynasty, only the written contract was the trustworthy form in the tenancy relationship. However, the risk of the tenancy relationship cannot be avoided by the written contract which includes lack of truthfulness and some other defects in the publicity of the single contract form. Because of the reasonable, but not equal lease price, the lack of trust and some defects in the publicity of the contract form, the performance risk had been buried in the tenancy relationship, when it was established.The effect of the establishment of the tenancy relationship is the performance of the duties. The author induces comprehensively some duties which the parties should perform, especially investigating and analyzing the performance and acceptance of the third person, the successive performance, etc. At the same time, the author also analyzes the unsuccessful role of the statute law in the performance of duties. In the performance of these duties, apart from the pi-zhu(皮主),the other types of tenants are in an unequal status. Because of the equivalent obligations and the lack of the idea of abiding by the contract, the breach of contract of The Parties (especially the tenant), is inevitable. It is the instinctive and rational response that the tenant delays in performance, badly performs and refuses to pay the rent, due to facing unfair trading conditions. The tenants always take legal or illegal measures, to reverse the imbalance in the tenancy relationship, while, at the same time, the owners and the governments endure or indulge the performance of the tenants. The compensation for breach of the contract in modern civil law never existed in the customary law of the tenancy relationship during the Qing-Dynasty. When the legally unequal relationship between the owners and the tenants actually tends to equalize, through the games between the parties in the performance of contract, the principle of abiding by the contract, lost its position in the tenancy relationship. Some more serious consequences, being the relationship of rights and obligations between the owners and the tenants has been in an unstable state, which is aggravated by the alteration of.the performance.It is inevitable that the parties and the matters in the tenancy relationship alter during the existence of this relationship. The two focuses of the alteration are obviously the right of disposition of the tenant and rent relief. The pi-zhu(皮主)performs independent usufruct and right of disposition, without owner restraint. The priority in the redemption of the pi-ye(皮业)which the pi-zhu(皮主)enjoys is the deprivation of the right of termination by the owner. The other types of tenant, who illegally transfer the lease, directly deprived the owner of the right to select a new suitable tenant. The concern of the Government is not to ban the illegal action of the other types of tenant, but to ban the legal action of the pi-zhu(皮主).It is very natural that the Government, which pays prime attention to the political stability and the taxes, worries too much about the’yi-tian-liang-zhu(一田两主)relationship’. The registration system may not apply to the tenancy relationship, because the government was restricted by subjective and objective conditions. However, because the parties underestimate the procedures and the forms, not only the right of the owner has been damaged, but also it becomes difficult to establish a fair customary law of the tenancy relationship.The alteration of the rents is another challenge which the parties must face. The tenants could request for the reduction of the rents for some different reasons, of which a bad harvest is one of the most powerful reasons. The individual request for the reduction of the rents was not common during the Qing-Dynasty. Attributing to a good effect, the collective request for the reduction of the rents is often used by the tenants, when a bad harvest happens. The contract and the customary law, when the rents could not be reduced during a bad harvest, could not cease in the realization of the purpose of the reduction of the rents, when abiding by the contract principles was once again violated. In the face of the assembled parties, who ask for the reduction of the rents, the Government usually takes an indifferent attitude. Whether it is the facial expression of the tenant, or the reduction of the rents in the request, the owner usually could only suffer in silence. The tenants would reverse the imbalance in the tenancy relationship, through’games with the owners’. Meanwhile the principle of the equality of modern civil law has, in fact, been partly realized.The risk in which the owners transfer their land occurred not in the form and mainly in the entity of the following two problems, which have long been ignored by scholars, still needs to be clarified here:Firstly, according to the principle of fairness, the owners could not transfer their land, without the consent of the tenants. However, the owners could transfer their land without the consent of the tenants in the customary law of the tenancy relationship.Secondly, the return of the lease price is undertaken by ’new owner modern civil law’. However, it is fraught with risks when the return of the lease price is undertaken by different parties in the customary law tenancy relationship. The cessation of the parties and the separation generally will not affect the security of transactions, which may be one of the benefits patriarchally.The history of the tenancy relationship during the Qing-Dynasty ended with the termination of the tenancy relationship. However, the termination of the time-limited tenancy relationship during the Qing-Dynasty, which was very different from the modern law, is infrequently due to the expiration of the lease. The unilateral termination by the parties, especially the owners, is the most common way to terminate the tenancy relationship. The most powerful reason was undoubtedly the overdue rent when the parties terminated all types of the tenancy relationship. In the termination of the tenancy relationship, the parties in the Qing-Dynasty had more than the freedom of modern parties. Only when the parties, or their family members, were ousted from the tenancy relationship would the government intervene in the termination of the tenancy relationship. The return of overdue rent, apparently is a central part in fulfilling the obligation of the return. The tenants not only did not need to return the overdue rent, in many cases, but the return of the interest on delayed payments never happened. This custom about the return was not only associated with one in which the parties did not strictly abide by the contract, but was also associated with unfairness regarding the amount of the rent. However, the equivalence thought is achieved between the parties. In the termination of the tenancy relationship, the parties need to return the tenancy contract, or sign the contract of the termination of the tenancy relationship, which show lack of good faith and harms the transaction security. The verbal form in the termination of a large number of the tenancy relationships contrasted sharply with almost all of the written contract forms in the establishment of the tenancy relationship.Finally, in conclusion, I will state that mainly, the tenancy relationship during the Qing-Dynasty was always in a state of non-legal customary law, not only because of the unfair matters of the tenancy relationship, but also because of the lack of good faith in the performance of it, the tenancy relationship which was based on the customary law and the contract, was often not uniform with the tenancy relationship, in the practice&in the absence of the positive law. Through’the games between the owners and the tenants’, which was accompanied by sporadic government intervention, the tenancy relationship during the Qing-Dynasty always oscillated between the law and the facts.The Four basic principles that the modern private law, presented in the customary law of the tenancy relationship, during the Qing-Dynasty:The first was the autonomy of private law or the autonomy of will, which also existed in the Qing-Dynasty. The autonomy of will in the Qing-Dynasty was the autonomy of the will of the ’paterfamilias’, rather than all family members.The second was the equivalence thought. The unequal matters which were agreed upon by the parties in the tenancy relationship were partly amended in the performance of the tenancy relationship, while, at the same time, the inequalities in the law between the Parties, at least partially, tended to equality in the fact tier.The third was the abiding by contract. The lack of the equivalence thought had prevented the party, who suffered losses from complying with the’from the bottom of the heart’contract’, so the consciousness and idea of the abiding by contract had not been generally established in the hearts of The Parties in the Qing-Dynasty.The fourth is the transaction security. The underestimation of form and procedure, the absence of the statute law and ’good faith’, made transaction safety no to be fully realized. |
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