The Transformation Of Land Right And It's Legal Regulation

The impact of the estate system has been the main reason about progress and development of Chinese civilization,it has also been the intrinsic motivation.During a certain historical period,the patterns about transfer of at home and abroad and the government's control level about transfer of estate rights may impact the prosperity and decline of civilization,by studying the forms of estate transfer and the government's control about the form of estate transfer in the Qing Dynasty,we can understand the forms of estate transfer, the functions of estate transfer,the government's defect about estate legislation in the Qing Dynasty.it also can provide the historical reference value about state legislation.The forms of estate transfer in the Qing Dynasty is a lot of current research topics,the study about estate transfer in the Qing Dynasty must have the depth at home and abroad,but those scholars have not study forms of estate transfer related with the government's control in the Qing Dynasty.I try to study them from the contracts between the sellers and the buyers.I try to analyze them with clarity,the relationship between national law and civil habits at dealing with the dispute,the forms of estate transfer in the Qing Dynasty include of di,dang,tenancy,dian,jue mai,jiu feng.Di and dang played a form of transfer of the financing function of the land,the concept of Di and dang is different from the modern concept of the meaning of the mortgage.it is not exactly the same.Di and Dang transfer the usufruct right to the creditor,Another meaning is that the original owners continue to dominate the usufruct right to mortgage the debt of the debtor.The form tenancy separate the land usufruct from the ownership right on land.the land owner maintain ownership of the land,the lessee possess of usufruct of the land;the forms ofjue Mai and jiu Feng transfer the ownership right on land to the buyer;Dian exerts the function of the finance and transfers the usufruct right on land to the user,the person who owns the ownership ship on land owns the usufruct.Both parties complete the transaction by signing the contracts,when the parties sign the contracts,a certain habit of civil transactions created.National law in the Qing Dynasty in the study of the transfer patterns of land ownership regulations,the law adjusted the trade of the estate in Qing Dynasty is very simple,and the transfer of rights in the law in the country wasn't enough, there was not a special contractual regulation,many civil habits emerged,but also produced a large number of disputes,in the treatment of most of these disputes between the parties,the judges heard the case in according with the contracts.These contracts which the buyer paid tax to the Government were the legal effect in the most original title deeds.Qing Dynasty officials in adjudicating civil disputes did not have enough real rules,they generally would comply with the parties' true meaning of the expression,in accordance with the Confucian idea,courtesy law to deal with these disputes.Therefore,officials in the Qing Dynasty faced the emergence of disputes,they often comply with customary law in the country and with reference to benevolence,righteousness,courtesy,discretion of the scope of the letter.Comparing with the modern contracts,the contracts in the Qing Dynasty was not entirely the same concept,the similarities between them both on at the connotation of merchandise transactions in the course of the parties to express the true meaning.However,they were different from modern society.From the want-type contract,the contracts had at least two instruments,a staff person at least,but at the introduction of civil law in the late Qing Dynasty,before the contract is often seen in the form of a party who wrote the single-letter to the other party.To the contract point of view about the transfer of rights in the Qing Dynasty, there was "from Status to Contract",it Changed the nature of society slowly,because the two sides who entered into contracts was not the dialogue between the strong and the weak,it had a modern expression of the lease contract autonomy.In the Qing Dynasty,because there was not a complete code about the estate system,it would appear over-concentration of land,land subdivision is too small,too much lease burden, a large number of farmers became the poor possibility,which inevitably had a large number of displaced persons and would trigger social unrest.In according with China's current estate system on countryside land,the farmers can subcontract,lease,exchange,transfer their farmland,but because of the existing the limitations of land laws and regulations,it is difficult to maximize the benefits for the user of the land,it can case the enthusiasm of capital investment of the land was limited.I believe that the form of Dian which adopted in the Qing Dynasty can be adopted in the modern Chin's land reform.Dian could be introduced to China in the reform of the estate transfer;the estate transfer will fulfills the perfect combination of usufruct right on land and financing.