The Married Women's Property Rights During The Nanjing National Government

Property right is the core issue in female's rights. In China's traditional society, woman's property right was greatly limited. After Sheng Jia-ben's reform of law in late Qing Dynasty, the civil case law system of our country embarked upon the long journey of modernization. Along with The large influxes of west thoughts in a rampant manner, China's traditional value and institutional framework received a serious blow, and the traditional law underwent transforms and changes. From the Qing Dynasty's Draft Plans of Civil Law in the late Qing Dynasty to the Republic Civil Code of Nanjing national government, the west counties' advanced laws, principles and ideas of law were brought in china in large quantities, causing the westernized and modernized transforms of Chinese law system. Meanwhile, a great number of traditional laws and regulations and practice (the local law resources) were still valued, reserved and developed either in terms of the written institution or the judicial precedent, explanation and habitual practice. This had been proved by the several large-scale surveys of civil and commercial habits which aimed at setting up a corpus of civil law during the period of the late Qing Dynast and the Republic of China.The regimes after the late Qing Dynasty all tried to conciliate the sever conflicts between tradition and modern, country and society. By taking the married-woman's property right in contemporary China as an example, and by tidying and researching our country's legal system (including legislation, judicature and fork customs) in the period of Nanjing national government, this paper aims at discovering, exploring, and reflecting how did the lawmakers, in the transform period of china's legal system, handle and harmonize the relations between the reservation of traditional practice(local recourses) and the transforms and changes of law modernization; how did they avoid the embarrassed situation where expression and practice deviated from each other. What were the experience and lessons? Meanwhile, taking history as a guide, what can our contemporary legal system learn and edify from it?Adopting a historical method( from the angles of the historical development of women's property and from the angle of sociology), this paper will use cases to analyze the differences of women's property right in social activities and in the Republic of China's legal system to study the woman's property right under the Nanjing national government. Through the relative regulations on women's property in that period, we can learn that in the process of building our modem legal system, the civil law system learned from and referred to the foreign established advanced law systems and ideas about law by means of law transplants. Besides, lawmakers always attached great importance to the absorption, reservation and modification of our country's inherent folk customs.There are eight parts in this paper:Part one: introduction. With the rising trend of sexual equality in the period of the Republic of China, the traditional property system was criticized largely. With the promulgating of Collection on Relatives and Collection on Inheritance in The Civil Code of the Public of China, women's right in inheritance had achieved a break—through. In the past, the research on property right was mainly focused on men, while the research on female's property was still blank. Based on predecessors' research, this paper combed the relative regulations on married women's property right in china's traditional society, and elaborated and analysed, in the Combining of the Civil Custom and judicial files, the difference and integration between the State Law and folk's custom which were embodied in the system of women's property right.Part two: a general view of the married women's property right in the ancient time. The laws and regulations on married women's property right before Tang dynasty were relatively few. On the whole, however, women in that period enjoyed certain rights of possession and inheritance of family property, except in Zhou dynasty. In Tang and Song dynasties, married women enjoyed property right could be manifested in three aspects: the property inherited from their husbands' family, entitled on the death of their husbands if wives still worn the willows, and brought from their own families. What needs to be mentioned is that in Song dynasty the law modified daughters' inheritance of their fathers' property when there were no male heirs. The dynasties after Song had some changes on women's regulations, but they were all amended and unproved on the basis of Tang and Song dynasties' law system.Part three: The property right of married women in early Republic of China. Great changes in the legal system of the country happened at the end of the Qing Dynasty and the beginning of Republic of China, during which were flooded the conflict and the covert conformity between the traditional and the contemporary China and between the Chinese and western values. Active Criminal Law of Qing Dynasty abridged from Laws and Statutes of Qing Dynasty did not change the basis of the traditional inherit system nor the basic contents of it. Although Dali Court reconstructed the traditional inherit system through cases of explanation to some degree, it held reserved attitude towards the daughters' inheritance of property, making no alteration corresponding to the actual conditions. What I would like point out here is that in 1925 Civil Law drafts prescribed that husband might take his wife's proper property, making the wife's proper property under her husband's control, which intrinsically had no difference with the prescript in the late Qing Dynasty.Part Four: Women's property right in a system during the period of the rule of Nanjing National Government. From the civil law of Republic of China and the explanation of the relevant repudiation we can see that Nanjing National Government attached great importance to the construction of women's property right system. The system of couple's property, the system of law of inheritance and the divorce system made detailed prescript to the property fight of married women. The civil law of Republic of China used the values of contemporary western laws as reference, advocating equality between men and women and independent individualism, but also had choices giving way to the traditions.Part Five: Women's property right in social life during the period of the rule of Nanjing National Government. This paper compares Investigations into the Customs in Chinese Rural Areas and Report Record of Investigation into Civil Customs, which was edited by the Judicatory and Executive Department of the former Nanjing National Government in 1930, and finds that there are still some similarities of the customs of property right of married women between these two periods despite some differences. The legislature of the Nanjing National Government respected and absorbed parts of it, such as women's right to the marriage portion and the right to ask for divorce settlements. But this paper also finds thorough changes to the traditional customs, such as the creation of women's property hairdo which was totally different from the traditional system of family property.Part Six: Women's property right in judicial practice during the period of the rule of Nanjing National Government. The year of 1930 witnessed the prints man of Civil Law of Republic of China, the first to be officially issued and implemented in Chinese history. The prints man also implied that all level of courts in the domination of Nanjing National Government would judge civil case by it. The courts, when confronted with cases deeply influenced by traditions and customs, always cautiously mediated between conventions and laws. From the cases cited in the paper, we can see that judicial consent is always given to the conventions absorbed in the legislature; but in the terms of the issue headroom which seemed quite Jacobincal in the conservative society, the judicial authority tried to alleviate the contradiction between the traditional laws and the social practice. The judicial authority adopted the method in practice that they determine whether the daughter has the right to the heritage by the implementing time of the inheritance act and the death time of the inherited This method to some degree admits the meaning of the old conventions, but does not give up the efforts to make the country accept the contemporary legal values.Part Seven: From the property rights of married women look at the relationship between the state laws and the conventions. A nomological analysis of the relationship between the state laws and the conventions. The state laws and the conventions go hand in hand and they can on certain conditions be integrated and cooperate. In terms of women's property right, the legislators and the judicial authority in Republic of China tried to integrate them by absorbing the conventions directly in legislature or communicating and harmonizing to the largest extent the relationship between the modern legal system and concept and the traditional Chinese legal system.Part Eight: Conclusion. There may exist some shortages and limitations of the contemporary Chinese legal system construction in dealing with the relationship between the traditional resources and the modem legal system. Nevertheless, as a whole, the legal system has gained some distinct accomplishments which should be positively affirmed. The current task of tour country of modern legal system construction should be to deal with and harmonize the relationship between the modem nomological and traditional native resources, using the history as reference, we can do better.