The General Research On The Pawning Right In Ancient China

Pawning Right system is a unique one in China, which does not exist in property right systems of other countries. There have been many researches and disputes about this system, but they focused mainly on its existence and seldom on its content and nature, especially from a historical point of view. The author attempts to make a thorough review from a historical angle on the birth and development of this inherent system, and its different characterizations in the different historical period as well. The full text can be divided in five chapters:The first chapter is a comprehensive presentation on historical course of Pawning Right system. Owing to the main characteristic of this paper, which is to make a review in content and nature of the system from historical angle, this part makes a simple introduction to the birth and development of Pawning Right. First, it must be talking about the origin of Pawning right."Pawning"can be traced back to the Western Zhou Dynasty time and be endowed with a special signification. Secondly, this part introduces the germination of Pawning Right in the following Three Kingdoms time, especially the appearance of"pastes in particular sells", which was regarded as the true beginning of the Pawning right. At last, which is also the key point of the first chapter, it introduced the evolution in the most important time of ancient economical development in China—Sui, Tang, Song, Yuan and Ming Dynasty. Actually the content of this chapter has been introduced in a number of papers. The reason why it is still introduced in the first part of this paper is to show that the different regulations about the system lied in all previous dynasties, which brought up the controversy on the nature of Pawning right. The second chapter is a definition of Pawning Right. In order to clarify its characteristic, it is necessary to distinguish Pawning Right from other property rights. First, the discrimination of pawning and selling was introduced. This discrimination is also the foundation of the independent existence and continuous development of Pawning Right. Through the economical development process in ancient times, Pawning was not distinguished from selling in the initial period. The law also put pawning with selling until the Ming Dynasty. Later in the Qing Dynasty, pawning and selling was further recognized as two different behaviors with its own characteristic. Second, the discrimination of pawning from pledge and mortgage was discussed. In a very long period of ancient times, pawning, pledge and mortgage were generally called pawning or mortgage, which, therefore, mixed the three rights together as a way of liabilities guarantee. After this discussion, it will be clear that Pawning Right is a kind of usufructuary right and not security interest.The third chapter is about the rights and obligations of the person concerned. In order to prove its property as a usufructuary right, the author introduced the rights and obligations of the person concerned with pawning right. The regulations of pawning right in different dynasties were introduced at first. And when the right to redemption was established by law, the property of pawning right was clarified, and was further reinforced by the following introduction of the right to possession, use and benefit.The fourth chapter is about the concluding procedure and form of the pawning right's contract. That is necessary for the comment on the content and nature. Furthermore, the different procedures and forms in each dynasty have proven the continuously changing in character. The pawning right has not been certainly admitted by law until Song and Yuan Dynasty, so that there was not any record about them in those dynasties. In Song and Yuan Dynasty the process of making a contract of pawning right should have four essential documents. These four important documents made the foundation of the procedure, and have been used till Ming and Qing Dynasties. Moreover the official sample of pawning right's contracts appeared in Ming Dynasty took a stricter standard of the nature and content. A large number of transferring contracts came out in Qing Dynasty proved the nature of usufructuary right completely.The fifth chapter is a new attempt to researching on the nature of pawning right. Actually that's not mean allocating a new nature to it, it is only to make an analysis from a new angle. It is the most appropriate to define the pawning right as usufructuary right. Furthermore, the pawning right would make a special function on the business'security and the promotion of circulation only if it can be admitted as an usufructuary right.