Analysis On The Legislation Of Commercial Law Of The Late Qing Dynasty

The legislation of commercial law in the late Qing Dynasty was one of the most important parts which are irreplaceable in the revision of law in the late Qing Dynasty, and it was the first attempt in the field of commercial law legislation in the Chinese modern history. As an epoch-making affair, its great influence shouldn't be neglected. In order to evaluate and position the historical value of this legislation scientifically and rationally, the author tries to look back on and study this legislation more comprehensively, from the angle of the subject of historical law. This paper is designed to discuss the main aspect of this legislation, including its background, practices, characteristics and historic influences, so as to seize the temporal situation and then make a thorough review on it.The legislation of commercial law being put on schedule and realized in the revision of law until the late Qing Dynasty has many reasons. For one thing, the corporations appeared and developed gradually in China in the 19th century, which brought about the needs of the legislation of corporation objectively. For another, the ideology of legislation of corporation that had arisen and be strengthened provided the supports of consciousness to the legislation. Meanwhile, the change of the Qing government's attitude towards commerce gave a chance to the legislation of corporation.The Qing government had spent eight years in the legislating of commercial law in the late Qing Dynasty. According to the development of this legislation, we can divide this legislation into two phases[0], the reform of official institution being the dividing line: the first phase is from 1903 to 1907, and the second is from 1907 to 1911.As far as either phase is concerned, it manifested different characteristics. The first phase showed simplification. The government promulgated some laws and regulations, and the formulation of The Corporation Law became emphasis of the legislation in this phase. This was the first appearance of The Corporation Law .It emphasized on following the example of the foreign law, which paved the way for the second phase of this legislation. The legislation was carried out on the basis of the commercial code in the second phase. Due to the adoption of the legislative pattern of separating commercial law from civil law, the law of corporation constituted one of the commercial codes. The legislation of corporation was more systematic and substantial in this phase, such as legislative body, participants, and the consideration of legal provision.To demonstrate these questions, this paper is divided into three parts.The first part talks about the change of the mind in the late Qing dynasty. This session first reviews the Chinese traditional commercial views from the legislative perspective. The Chinese traditional political juristic idea is agricultural encouragement but commercial repression. In the time of Spring-Autumn & Warring States Period, every nation scrambled for supremacy, approving"commercial repression". The Caesarism system beginning from Qin's unionization based on natural economy, to impose directly on peasants and the land was the life line of the nation's fiscal economy, while trade was in the position of the opposite side to agricultural, various rules and regulations for restraining business development and debasing merchants being issued. Monopolization and governmental management was more serious, and it restrained the development of civil-kept industry and commerce; and the nation's standard for pursuing wealth fettered the people's subjective intend of richening their family by business on the angle of value. It is admitted that in the past 2000 odd years'traditional society, this kind of idea had been always in the position of the mainstream, and the businessmen had never formed an independent and powerful class. Emerging from the feudal society, the traditional trade was destined to not be the mainstream of the society cored in agriculture; therefore the traditional commercial value was pressed under the idea of agriculture-centered, possessing obvious shade of that. All the dynasties that followed were the same. The effect of this kind of idea lasted to the late Qing dynasty and the early republic of China, and weakened with the introduction of the western thought.After the Opium War, the advanced Chinese began to look at the world. They asserted to learn the martial technology, advanced economical management and the law system of the west, and gradually recognized that the economic invasion from the foreign countries was much more severe and dangerous. The early reformism representatives such as Zheng Guanying and Wang Tao called for more attention being paid for commerce and raised a discussion upsurge of"Commercial War"in the thinking world. Their spread of this idea had a significant meaning at that time. These commercial-essence thoughts opposite to the traditional agriculture-based thoughts were the product of the Chinese traditional economy going to collapse. It denied the traditional policy, puts forward the idea of richening the nation by trade, advocated to develop the capitalistic industry and commerce, and made the whole society re-recognize and appreciate the value of business and businessmen. Under the effects of commercial-centered thought, Qing government also changes the traditional business policy little by little and enacted a series of acts. Thus the whole society began to form a consciousness of respecting commerce, and the social status of the merchants greatly heightened. This caused the transition from the traditional agricultural society to the modern business society in China, and driven the later Restoration political reform and the economic reformation of the new deal of Qing dynasty.The second part: the major commercial legislation of late Qing dynasty and its characteristics. In this part, the author examines the course of commercial law legislation of late Qing dynasty and summarizes the characteristics whereof. It lasted about ten years and obtained abundant fruits and experiences mainly represented by Regius Commercial Law of Qing Dynasty, Draft of Commercial Law in Qing Dynasty and Draft of Revision Commercial Law of Qing Dynasty. The relevant provisions show that Regius Commercial Law of Qing Dynasty confirms in a legal form of commercial activities for the purpose of profit, and confirms the legal status of the merchant. It was different with the traditional customs, and it was the outcome of western laws'impact. The Qing government promulgated The Insolvent Law in 1906, which was strongly criticized and opposed by merchants all over the country. Unfortunately, however, it was soon abolished. Starting with the criticisms of merchants, the author analyzes the social and legal environment built upon the social and economic conditions, the government's legislative intentions, which show that it was the unhealthy social legal environment that restricted the enforcement of law. Based upon the analyses, the author explains that the lack of a sound legal environment in a society restricts the implementation of modern commercial law. Through the study of the legislation, the author believes that the legislation of commercial at the end of the Qing dynasty shows the following characteristics: the legislation of commercial in the end of the Qing dynasty is not the outcome of regime change, but a series of social, political, economic, cultural and diplomatic factors, and was deeply affected by the traditional thinking. The level and quality of the legislation was greatly affected by the legislators'competence. And it also has the tendency of copying western legislation, separating itself from practical situation, its contingency, advancement and transitional characteristics were obvious.[0] The third part: some inspirations of the legislation of commercial at the end of the Qing dynasty. This part elaborates the foreign factors on the legislation of commerce at the end of the Qing dynasty, the legislative endeavor of merchant, and the significance and shortcomings of the legislation of commerce at the end of the Qing dynasty. The paper points out that, the merchant's participation in the legislation of commercial law in the latter stage of Qing Dynasty means the beginnings of great vicissitudes of traditional power system. The merchant's participation in the legislation of commerce which mirrors the objective requirement for development of era, and is the institutional results of the gaming between the national interests and private rights. Thus it not only means the rise of merchant's right consciousness, but also is an extremely valuable attempt in the localization of commercial law. Commercial Legislation of Late Qing Dynasty was the first legislation practice, which had the significance of milestone in modern history of China. It had matured the Chinese modern law system and conduced to the fusion of Chinese conventional law culture and international law civilization. It also had laid a foundation for the Chinese commercial law construction. People should not neglect this history and it could not be evaded. Commercial Legislation of Late Qing Dynasty had left behind precious bequest for posterity. The study of this history will be helpful to the Chinese commercial law construction nowadays.[0]...