Mutation And Continuity In Judicial Practices Of The Chinese Inheritance System,1902-1931

This thesis discusses the mutation and continuity in judicial practices of the Chinese inheritance system in the early twentieth century.It depicts how Chinese ritual and material forms of inheritance were gradually reconceptualized,influenced by a Western individual property system from both substantial and procedural perspectives during legal and judicial reforms.It focuses mainly on three topics:local attitudes towards a Western inheritance system presented in survey reports of civil practices.the Dali Yuan's compromise of new and old laws and norms,and local judicial practices of adjudicating succession cases involving widows and daughters.Succession to the ancestral cult and the patrimony were two aspects of the same issue deeply entrenched in both people's practices and the Qing law,even after the Qing code had been turned into a partly westernized intermediary version called the CrJNiminal CodeCurrently in Force(Xianxing xinglu ????).To transplant a Western civil justice system;in 1910 a Western civil law framework was imposed on a unified questionnaire on "civil customs" which the Qing reformers sent to every province.This questionnaire neglected the ritual forms of inheritance and was revised by the Chinese notables and local officials.All along the Republican era.laws on inheritance of the Criminal Code currently in force continued to be effective.The Dali Yuan ???,assuming the Supreme Court function,established a set of judicial interpretations on inheritance within the framework of this code.It upheld women's rights by endowing them with rights to designate or repeal an instituted heir,to manage the patrimony on behalf of their young children in default of their husbands,and to transfer to a daughter a share of the patrimony,even though lesser than the share of a male heir.The Supreme Court also took Western procedural principles into account:a complaint over an illegal heir from an unrelated person would not be accepted,and an issue that had not been claimed for would not be adjudicated.Even so,led by both traditional and modern jurists,the Dali Yuan frequently delivered civil regulatory judicial decisions on the grounds of Qing laws and admitted the restraint on women's rights from senior and elder members,adult sons.and agnate kin.Influenced by judges from the Dali Yuan and under its supervision,modern courts and county magistrate offices(more traditional).that is to say,the two main types of judicial agencies in the Jiangsu and Zhejiang provinces,employed different style of adjudication when adjudicating succession cases from 1912 to 1931.Modern courts often carefully followed the Dali Yuan's judicial interpretations substantially and procedurally,whereas.county magistrate offices often found it difficult to follow the Dali Yuan's procedural rules,even though they sometimes referred to the Dali Yuan's rules.As a result.under a neutral style of adjudication in moderm jurisdictions,illegal heir designation would not be rectified by court if it was not necessary;limited amounts to a daughter or her son and husband were strictly obeyed.By contrast,county jurisdictions performed an active style of adjudication:they positively corrected illegal choices and considered elements beyond the law,such as duty to support the aged and the parents5 affection.The expansion of the moderm institutions did bring changes in the application of civil law:the civil legislation and the Dali Yuan's rules became most frequently cited legal sources even in inferior levels of jurisdictions,solid evidence and court debates were emphasized.Nevertheless,the diversity in the style of adjudication applied by various jurisdictions in Jiangsu and Zhejiang prove that national laws and rules could lack consistent implementation.Besides substantial and procedural laws and rules,Western legal principles were regularly cited as legal sources,whereas popular practices that paralleled or contradicted Qing laws,albeit recorded in the customs survey reports,were seldom regarded as legal sources.Women's status and rights could not be completely guaranteed by law during the judicial reforms which aimed at transplanting Western civil laws in a top-down way.