The Pawning Right System In The Modernization Of China's Legal System

The modernization of the legal system is the core of the modernization of the system. This paper takes Pawning Right System as an example, the inspection system from its formation to the beginning of the situation now faced by the analysis of the attributes of this system, and its historical changes slightly inspection. Further analysis of the modernization of China's legal system in the problems encountered, and its way of thinking put forward their own path. This paper is divided into four parts to the total on these issues.The paper discusses, in the first part, the content and historical transformation of the Pawning Right System. With regard to the concept of Pawning Right, the paper mainly to the "Republic of China Civil code" as the basis, that Pawning is the right to pay the price, the possession of others estate, and with the use of the proceeds of the rights. At the same time, Taiwan and the mainland law experts on the concept of the Pawning Right System to speech slightly comments that the individual on the concept of the right are based on the interpretation of this statutory and elaborated. Pawning cited in the right after, the paper posed by the Pawning of the private system description.Through the Pawning of the history of the system of inspection, we can reach the right Pawning system in China as early as the Han and Tang Dynasties era has been widely circulated in the civil, Pawning of the Song and Yuan Dynasties period in the legal system in the "Pawning of sales" appeared in the form of Pawning does not sell points. Pawning Right System truly in the legislation was an independent authorized appeared in the Ming dynasty, and will sell Pawning of distinction; a clear Pawning of the system itself is different from the general sale of all properties. This is different from Yang and Taiwan scholars on the TSE Pawning of the judgment of the system, he considered that China's legislation on the right, Pawning is system-specific provisions in the law have emerged. This section of the Pawning from the new system in the situation of China's legislation made recalled.Pawning then through the right system in the modernization of China's legal system of the special status of the exposition, this paper has made clear the Pawning of modernization of the legal system in the process of significance.In the article, the second part of this paper, Pawning of the realities faced by the system environment:a description of the legal system modernization. We used to the modern understanding of a "fault"-explained that this method in the modernization of the content on the characteristics of a certain positive role. But no community will be better able to the development of the consistency shown. The author Webber, drawing from the "rationalization" points out that the core spirit of modernization in the rationalization.Specific to the modernization of the system of property law, particularly in the context of China, there are two trends are worthy of our attention, first, the modernization of property laws by focusing on the fair distribution of property laws designed to gradually shift to the production of property the efficiency of concern. China's agricultural society because productivity is generally established, the total social production of wealth is not much change in such historical conditions, the community property laws of the distribution of wealth more concerned about the problem. And the trend of modernization of the legal system of property has made people even more concerned about the production of wealth on the issue, namely, how to produce more social and material wealth, property at the property, the pursuit of the legal system of incentives is particularly important role. China in the context of the modernization of the legal system of property another feature of the property is shown in the legal system by focusing on the possession of property rights over the property rights of concern to the use of the right to return. In the traditional property law system, the system of construction is all around the attribution of rights as the center, namely, social means of production and social products that are all problems. Attribution of the right to decide on the use of proceeds and disposition, property rights system derived from his ownership of the empowerment of decomposition, and the effect of conversion to the right of ownership, which is ownership of the main features of the centre. However, with the modernization of the system of property, there has been the trend of the property claims. This trend rooted in people's increasing demand for use of the means of production, namely, Marxism what material information the rise of reproduction. At this time, as a modern property law system, and its main social values are gradually into how to provide more social capital of the ways in which the community can make use of all the resources can be more effectively in the community, be used in reproduction .In the third part of the article, the author of the Pawning Right attributes the system to do its own analysis, which the traditional system of private property law with the requirements of a modern system in certain attributes. One of the Pawning of the performance of a modern system is its financing. The Pawning Right System throughout the property to the owner of an agrarian economy to a capitalist economy dominated claims this change process, which both continental law system of property attributes and attribute claims. This attribute it to meet the property of the people of all mentality at the same time, can make the best use to meet the people who has the right to Pawning pooling funds and the demand of the people who has the right to Pawning on the use of proceeds from demand for the expansion of social and material wealth created the conditions. Through such "claims" of the financing of the way the Chinese people as reflected in the simple values of the law, is the "Pawning" as "sell" a kind of said Pawning sell, or "Pawning" called " sell live. " It can be said that in China, a traditional agricultural society, the Pawning Right System for the emergence of social reproduction raise the funds needed for the establishment of the important channels. This community in the Tang and Song dynasties in China after the transition to the business community provided the economic basis and material conditions. Pawning of the performance of a modern system of the previous two is that it adopted the amendments to the legislation; the right to change its deadline on the Pawning provides that reflects the business community on the pursuit of efficiency. Pawning in the right system was first established, the law does not provide for the duration of Pawning, the people who has the right to Pawning can indefinitely Pawning of foreclosure. Emergence of the "Millennium live in sales, and died the same day," saying this shows that people in the agricultural economy to ignore the concept of time. With the development of commodity economy, which no deadline "live sales" can no longer meet the needs of social development at that time. Thus Qing Dynasty of Qianglong Pawning will be right in the period of 30 years, so as to reduce the Pawning caused by the long duration of the dispute. After the Department of households are living on civil cases and the duration of a lease provides that: "a period of 10 years, will not pay taxes," and through this system incentives to further encourage the Pawning shorten the period of life.In the discussion of the Pawning Right System from an agricultural society to the business community in the process of adaptive change, then this right of the Pawning system in the western society and the legal system under the impact of modern theoretical context. In China's legal system in the process of modernization, Western legal system and the theory of our influence is significant, these effects also profoundly reflected in the Pawning of the system need to "Property Law" be retained on the controversy. Pawning system of denying the right to enter "Property Law" point of view, the modernization of the legal system as the background to the "System On Contradiction" and "function instead of the" most obvious. A "system of contradictions," the scholars believe that the right system because of its Pawning in the modern system of property law not identify the location, both secured by the beneficial attributes and attribute to the property rights system in the West "status is undetermined." "On Contradiction system" also said that, because the Pawning of China's unique system of property law system, resulting in its property and the relevant international law system does not fit the legal age of globalization if it continues to retain the right Pawning system will hinder China property rights law and international property law convergence. And the "system of contradictions" in concert with "function instead of" from modern Western legal system as a whole concept of starting and pointed out that China's traditional system in the Pawning of functions no longer meet modern legal system, the financing of its original function can be used in other modern Western system to be addressed.Can be seen, whether it is "contradictory system of" or "insufficiency", the theoretical background to the West are based on a system of legal theory to the Pawning of system analysis. These problems and the deep-seated problems are that China's legal system and legal system modernization traditional resources transplantation, the legal integration of a problem between the legal pluralism.In the article, the fourth part of this Pawning Right System itself in the face of China's legal system modernization in the Western legal context of the relationship between the analyses. In this part of the beginning of China's adoption of the current economic and social analysis, the authors proposed in the city of today, not only in the vast rural areas, there exists a system of Pawning space, in the city there are also applicable Pawning of the possibility of the system, and Pawning Right System in the application of these issues and there are indeed different from the other systems unique. These unique in some extent that the right system in the Pawning of the usefulness of reality.Then, this paper from the legal system modernization and traditional legal resources, and global legal integration between the diversity and legal dimensions of the right, considers the Pawning system of environment. That the legal system modernization and traditional legal resources does not contradict the traditional legal resources can be used as building modern legal system resources. Global legal process is not brook pluralism is not a legal trends, the diversity of the law for the rule of law can better contribute to their own development.In the last part of this paper, the author has not given a arbitrary answer to the question whether Pawning Right System should exist or not in our Civil Law ,and merely given the inclination view in the text, hoping that there will more scholars can put their attention on the Pawning Right System in the China's modernization of legal system.