On The Changes Of Private Property Rights In Late Qing Dynasty And Early Republic Of China

The protection of private property rights is one of the important signs of legal civilization.Contemporary China is still on the road of judicial reform and rule of law.Taking history as a guide,we can understand the rise and fall and review the history.At the end of the Qing Dynasty and the beginning of the Republic of China,there was a major change in the national system.At that time,through a series of reforms such as law reform and law revision,the Western ideas of rights,democracy and the rule of law entered China.Under the cultural fusion and collision between China and the West,changes in the field of private property rights are mainly presented through four aspects:First,the protection of private property rights has changed from the traditional ethical private to the rational individual private.Secondly,from the system level of legal protection of private property rights,the traditional society is that civil legal norms are contained in criminal law provisions;since the late Qing Dynasty and the early Republic of China,an independent and complete civil law system has gradually formed.Thirdly,when the national government protects private property rights,its power function has also changed.On the one hand,the separation of administrative power and judicial power in traditional society has different patterns at different levels,on the other hand,it is limited to the nature of marital accident cases involving disputes over private property rights,so the traditional society mainly presents the mixed pattern of judicial administration in the protection of private property rights.Since the late Qing Dynasty and the early Republic of China,through judicial reform,the system of trial court has gradually become clear.Whether it is the fourth-level three-trial system in the late Qing Dynasty or the third-level three-trial system in the Nanjing National Government,the judicial power to protect private property rights has been gradually stripped from the administrative power,further strengthening the judicial protection of private rights,and thus limiting the public.The right to interfere with private rights.Fourthly,due to the special background of the times when the Dali Court came into being,the civil and criminal precedent system formed by the judges in the process of trial cases creatively exercises the function of juridical concurrent legislation in the way of making laws by judges,and enables these judges to represent the old academic background of traditional ideas and the law of Western concepts.The concept of learning has been deeply integrated.Through the analysis of the four aspects of the changes of private property rights in the late Qing Dynasty and the early Republic of China,historical facts have repeatedly told us that the protection of private property rights has the same characteristics of the times-inevitability and nationality.The ruling class in Chinese traditional society attaches great importance to private property rights and the separation and merger of traditional countries tend to be the same.In a unified era,the protection of private property rights was always paid more attention at the beginning of the unification.With the solidification and decay of the ruling class,the growth of exploitation consciousness and the weakening of the people's thought,the people's private property rights will be infringed directly or indirectly by increasing tax and corvee.Under prolonged exploitation and oppression,the instinctive protection of private property rights will lead the people to struggle and the era of unification will be divided.This is the inevitability of the protection of private property rights.In other words,the reasonable protection of private property rights is an unavoidable issue for any state power in the current historical period.An important prerequisite for national unification and stability is to protect the private property rights of the people.On the other hand,private property rights have national characteristics,manifested in different social and historical stages,different cultural fields,private property rights have different connotations.It is not possible to deconstruct historical facts with a single,mechanistic conceptual theory.The ultimate goal of academic research is how to better understand the real world.The universalism represented by concepts and theories and the particularism represented by special experience and applied research are of great significance in the study of the changes of private property rights in the late Qing Dynasty and the early Republic of China.Analyzing the specific cases of the Dali Court,we can find that although individual rights and the idea of equality between men and women are liberated from ethical concepts,individualism,patronage,tenancy and marital and family property relations are influenced by the traditional Chinese concept of public and private interests,Confucianism and benevolence.The absolute concept of property rights and the consequent concept of relay family can not be integrated with China's historical time and space.In the process of protecting private property rights,the Presidents of the Dali Academy have made positive contributions to find the historical context of Chinese culture,to meet the development needs of Chinese society,and to explore the balance between the times and nationalities.At the end of the Qing Dynasty and the beginning of the Republic of China,the concept of "separation of powers" and "balance of powers" flooded into China,and the Dali Court was entrusted with the function of the Supreme Judicial trial.At that time,when the system was established and the state was waiting to be prospered,no matter political environment,social situation or legislative technology,it was impossible to establish a unified civil law system and form a complete civil code.However,although the code is not complete,social life has not stagnated.The legislative tasks that have not yet been completed by the legislature go on to the judiciary.As the highest judicial department in the society at that time,the precedents and their tenets of the Dali Court were used by a large number of lower courts in judicial practice,although the precedents and their tenets did not have a strict sense of res judicata because of the continuation of the tradition of statute law and the beginning of the Republic of China.It has produced the practical function of "judicial concurrent operation legislation".In the development trend of checks and balances of power in social governance,this mode of power merger of "juridical concurrent operation legislation" of Dali Court in early Republic of China has its special historical background.However,in the case of private property rights,we can see that this kind of theory and concept is abstracted from practice and then applied to practice.At the level of law enforcement,the model can achieve the effect of "subduing with capital";at the level of legal system creation,it can more reasonably reconcile the basic spirit and principle of private property rights with the cultural tradition of the Chinese nation and the needs of social reality;and reduce the system,concept,theory and special social life practice to a greater-extent.The conflict between them reduces the cost of law enforcement as far as possible,and does not become a mere formality from the practice of law.Therefore,the pattern of"juridical concurrent legislation" explored by Dali Court in the early Republic of China in the special historical period has a positive historical significance,and is a treasure with national characteristics and characteristics of the times in the process of the construction of legal civilization in China.