| This article is titled the development in history and the contemporary influence of the Dian right, divided into four parts:The first chapter is the development of the Dian right. Firstly, we can find that "Dian" character had an usage in Zhou Dynasty through perusing the ancient books. The conclusion can be made that "Dian" was a transmogrification of sale in that historical environment. Going to Three Kingdoms and South and North Dynasties, the private own of land developed greatly. These made a fine environment for the exchange, trade and usage of the land. "Dian" appeared in some history books infrequently, the phenomenon of "tie sale" also had been written downed. The Dian was in embryonic phase at that time.In Sui and Tang period, the nation inherited the farmland system that nation reserved greatly part of property and limited the business of the land of the ex-dynasties. In the condition, "Dian tie ", "tie sale "etc. forms of business started to appear gradually. The farmland system had been broken at the end of Tang dynasty ,so the law relieved the restriction order of the "tie Dian" gradually. From "tie Lin", "tie sale "to "tie Dian", the phrase was changing, to form the system of "Dian". But "Dian", "mortgage ", "pawning" were confusable in the phrase usage at that time .Through the development in Tang Dynasty, the Dian had been mature.A series rules since the middle of Tang Dynasty concerning the Dian Lay foundation for the constituting of the "Dian" in Song dynasty. In Song dynasty, phenomenon of the land business was more familiar, as a result nation strengthened holding in the laws .Nation Strengthened management in the law for the alteration of landholding , and established a course for Dian and the others similar systems. The law ruled some primary rules and protected the benefits of the both side in Dian. The Yuan Dynasty added detailed rules in Dian after it had buildup. Build up an authorities register system of the farm land Dian and sale .A contract had to been signed in the business of land. Some necessarily legal processes had been drawn up .It had some difference in foremost purchase the Object between Yuan Dynasty and the other Dynasties .Having been put into the law formally was the biggest characteristics of the Ming Dynasty's Dian. The distinction was explicit between "Dian" and "sale". The Ming law had ruled procedure, principle and the basic contents of the Dian. Tang, Song, especially Ming Dynasty's law tradition was inheritance in Qing dynasty's civil law. Had been considered the actual circumstance, it was special features that law about the Dian . It was regulated that the duration of the Dian and the rules of redeeming, also was noticed specially protection of the Manchu property.The second chapter, the fluctuations of Dian was in modern civil legislations. After the failure of the Opium War, the Qing government was forced to internal and external pressures, started legal amendments. The Japan scholars who was entrusted with the drafting of the property rights part in Qing civil law, made their mistakes, in addition to the rush of legislation, our country's traditional Dian was replaced by the pledge of real estate in Civil Law Draft of Qing Dynasty.After the overthrow of Qing dynasty, the Peking government had not announced a new civil law, judicial practice caused some confusion. Its subsequent amendments, Civil Law Draft of the Republic of China, although the resumption of the Dian, but also the pledge of real estate to remain, Moreover, they are confused each other.The Nanjing government of Republic of China came to power, the completion and adoption of Code of the Republic of China Civil law .The legislators thought that the Dian is superior to the pledge of real estate, resulting in the cancellation of the pledge of real estate so the Dian to return to the Code.The third chapter is the comparison which between the Dian and the other legal systems similar. The Dian right and the other modern theory of civil law system similar is confusing, it is necessary to compare. In the historical development, pawn and the Dian were the most similar, but also very different obviously: both are of different nature; rights and obligations of the different elements; different object; vary greatly in length; different qualifications. The Dian and real estate mortgage, compared to two in the nature, content, the way right to achieve there are differences between them. And the lease-purchase transactions, the two also exist in nature, content, the rights of different ways, in addition, both in duration, object and so on vary. In modern civil law theory, real estate quality and most close to the right Code, the Civil Code in many countries have provided real property transfer, Japanese real estate and the right to transfer more similar to the Code. The difference between the two is mainly reflected in nature, according to the rights, as well as ways of achieving. Similar to the system adopted and the comparison of different scholars on the nature of the Dian have their own views: Some scholars believe that the Dian right is Usufruct; Some scholars believe that the Dian is to guarantee property rights; Some scholars believe that the Dian is the right combination of guarantee and Usufruct. I believe that the Dian is mainly usufruct.In the fourth chapter is the contemporary influence of the Dian. The Civil law of China's Taiwan region dedicated a chapter to regulate the Dian. Inheritancing the tradition, on the basis of modern civil theory to use as a guide for some necessary transformations: the definition, the period, the effectiveness, etc.At the present, the property rights law which have been promulgated and to be implemented abolishes the Dian right. But in academia, there is a controversial in the retention or abolition of the Dian right. In ancient Chinese community , the small-scale peasant farming system ,ambiguous land property rights system, the village lifestyle of the name and blood unit, and the " Filial piety " "Benefactor" of Confucian thinking multifaceted to the exist of the Dian ; the other hand, the Dian, in turn, on people's economic output, family life has had a positive effect. Contrast contemporary socio-economic environment, the author believes the Dian is necessary: The traditional "Filial piety" thinking still exists; Chinese citizens occupy housing, there are the certain gaps in the civil law system.Finally, the author proposes to rebuild the Dian some ideas, following the traditional influence at the same time, we must pay attention to the duration of the Dian, the price for the Dian and redeeming, conducted under the condition of market economy reforms. |
PDF Full Text Request