The End Of The Qing Dynasty Civil Code And The Research

As a significant component of the law revision in modem China, the codificationof the civil code in the late Qing Dynasty represents the process of China beingcompelled to open to the outside and accept the continental law system after theOpium War in 1840. The history of civil law development indicates that the civilcode is based on the full development of capitalist commodity economy and civilsociety, not compatible with the self-sufficient natural economy, advocating theconcept of private rights, As for China towards the late Qing Dynasty, capitalisteconomy had gained small-scale development in some area, though, suppressed byrooted feudalism, it was far from strong enough to induce the civil code. There aretwo motives for the compilation of civil code towards the late Qing Dynasty, one is toreclaim "ex-territoriality" and to build the jurisdiction equal to western powers in theway of law reform; the other is to follow the trend of modernization of the wholeChinese laws where the codification of civil law was put on the agenda under thepressure of the independence of other departments of law.The motivation of external force decides that the growth pattern of civil code isinfluenced by surroundings with a late start, and causes a lot of difficulty incompiling civil code. The reasons are displayed as follows: the capitalist relation ofproduction has not fully developed; the economic foundation of civil code is ratherweak; the conception of duty standard has been formed in the strong feudal traditionalculture of law; the lack of the source of civil code, the underdevelopment of the civillaw theory, and the absence of independent jurist stratum all contribute to it. Besides,the political needs lead to time pressure of compiling civil code.Faced with these difficulties, the codifiers cast their eyes over the whole worldand conducted careful comparison between foreign legislations to conclude thatGerman and Japan are close to China towards the late Qing Dynasty in politicalsystem, and both of them rose through the reform of legislation. Based on thisconclusion they adopted the strategy of "following the examples of distant Germanand neighboring Japan", namely taking the codification mode of Japan's civil code as their codifying manner and implanting 1900 Civil Code of German and 1898 meijiCivil Code of Japan by translating civil codes and legal works and engaging foreignexperts, etc; and finally brought about the drafting of the Qing Civil Code Draft .TheDraft Civil Law of Qing Dynasty is structured according to German's PenderkertonJurisprudence and is composed of such five volumes as General Rules, Debtor'sRight, Right of Property, Kinsfolk and Inheritance. To be specific, the former threevolumes embodies the capitalist civil law doctrines, including Equal Personality,Freedom of Contracting, Supreme Private Rights and Liability Based on Fault; whilethe latter two retain Chinese feudal ethics with some adaptation based oninvestigation of then prevalent civil conventions and therefore embodies the order anddegree of the traditional legal system. At last the codifiers completed the Civil CodeDraft of Qing Dynasty by transplanting the Civil Code of German and Meiji CivilCode of Japan.Although the Draft Civil Code of Qing Dynasty verges on plagiarism byabsorbing the German and Japanese civil law achievements, its positive significancecannot be denied. It promotes the spread of civil law spirit, publicizes the idea ofprivate law, breaks away from the traditional code compiling mode that mixes civillaw and criminal law by initiating the compilation of a separate civil law. Moreover, itcontributes to the formation and development of civil law theory by translatingforeign theories, sending students abroad for study and establishing law schools. Itsfar-reaching impact can be found in the civil legislation of the Republic of China andeven the compilation of civil code today. However, with a mixed modem and feudalcontent, the Draft is deficient in many ways: the disintegration of the generalprinciples and the sub provisions, the conflict between right orientation and dutyorientation, the friction between Chinese traditional ethics and modem civil law.These deficiencies account for the heated criticism it attracted after completion, andshould draw our attention in our civil law making today.