From Qing Dynasty To The Republic Of China:Research On Dian Qi Of Civil Lands And Houses

Dian qi(??)is the special civil contract which is drafted between the pawner and the dien-holder.The original dian qi(??)occurred during Nanbei Dynasty.Qing dynast is the extension and development of Yuan and Ming dynasty.The fixed structure was formed.The rights and obligations of the pawner and the dien-holder could be protected adequately by dian qi(??).The participation of the interceder provides the full safety.During the Compilation of Law activities,fixed assets of mortgage was appended into the Draft Civil Law of Qing Dynasty,and dian quan(??)was canceled.This behavior was queried generally by in the academic world.dian qi(??)existed in the society widely,and it affected judicial adjudication.Finally,dian quan(??)was established in the Draft of Civil Code by Beiyang GovernmentThis dissertation is about the analysis of“variation”and“invariability”during Qing dynasty on the formation of dian qi(??),the rights and obligations of the pawner and the dien-holder,etc.In nature,dian quan(??)belongs to usufructuary right.The property of dian qi(??)would change because of the period of mortgage.During the period,the function of dian quan(??)reflects the primary usufructuary right and the assistive collateral.If it expires,the rights are just reversed.The right of redemption is protected.The nature is changed.An integrated dian qi(??)includes the main body and the qi wei??.The main body is the main part of dian qi(??)?The clauses in the main body confirm the rights and obligations of the pawner and the dien-holder.Qi wei(??)is the sign part ofdian qi(??).It affirms the rights and obligations of the pawner and the dien-holder.The right of balancing the price and redemption is the primary right of the pawner.Chu dian(??)is changed to be dian mai(??)when the price is close to the real value.The pawner has the right of zhuan dian(??).the price which is provided by the new pawner would not be higher than before,and the old pawner could redeem with the original price.The new period should be shorter than before.The objects would be possessed conceptually.According to the law of Beiyang government,if the period achieves 20 years,the subject matter in dian qi(??)is land,and the price rises,the dien-holder has the right to rise the price to ask the pawner to redeem objects.The integrated dian qi(??)behavior includes lease and borrowing.Both the pawner and the dien-holder havethe rights and obligations,and the monetary obligation which is caused by dian qi(??)could be offset.The dian qi(??)performance would consume some cost which include dian qi(??)variable cost and fixed cost.Extending the period of dian qi(??)continually is the direct approach to reduce annual cost of dian qi(??).The dispute would be produced during the period of contract performance:the things which labeled in the contract was pawned or sold would be disputed;the dispute for transferring;the dispute for the long period of mortgage,losses of evidence,and the ambiguity of rights and obligations.The government should judge the dispute fairly according to the evidence of dian qi(??).The primary evidence of settling the dispute is red-contract?According the legal effect,red-contract is different from white-contract which only records the coordination results.The operation mechanism of dian qi(??)reflects not only the economic equity between the pawner and the dien-holder,but also the democracy and freedom under the background of Patriarchal clan system.It illustrated the People's concept of faith that people could keep the promise and respect the contract in the daily life.The simple humanitarian spirit could be realized.