The Experience And Interaction Between State Legislation And Civil Custom

The state legislation and the civil customs are always in conflict and integration in the process of social development and the legislative system turns to be more and more perfect and mature. In daily life, civil trading is most common and frequent. Drafting a contract is the nature of maintenance of rights and interests and the performance of consciousness, which forms the rules of making and performing contract naturally. These civil rules also get acquiesce and formal recognition from the official legislation of the country, which forms an interaction between the national legislation and the civil customs. In a long practice process in the ancient society, civil contract behavior was adjusted by the national legislation and civil customs, coming into a contract of rigorous format and terms. Up until now, this behavior is inherited and improved in the contract and even in the legal norms, which represents that the rationality of terms of contract can not be rejected or denied.In Chapter One, the article introduces that it takes a long period to form the format of traditional civil contract. The appearance and widely use of paper as a carrier in civil contract improved the format and enriched the content of the contract. Before Wei and Jin Dynasty, the format was in disorder and different. Until Song and Yuan Dynasty, the"standard contract"was promulgated by the government to control the tax and the appearance and widely use of the private compiled model contract format in the transactions like land selling, marriage and adoption settled the basic framework of the format of traditional civil contract.In Chapter Two, the article introduces that Ming and Qing Dynasty were the most mature period of feudal system. The format of the contract was becoming complete and the format used in land transaction marriage, breaking up the family and living apart showed a common homoplasy and a stable format was formed.In Chapter Three, the article introduces that the main terms of traditional civil contract presents the inherent reasons of format and also revealed the social environment and ethics foundation. In the aspect of inner function, the contract was built under the idea of belief, justice and interest and was used in the natural economic society of patriarchal system. In the aspect of structure, the contract was composed of introduction, body and conclusion, including the drafting time, the parties, the target thing, exchange price, payment, quality guarantee, objection handling, dispute resolution, limited release and the impartial person who is supposed to be a witness with authority. The author chose the parties, drafting aim and the impartial person as three most characteristic elements to introduce in this chapter.In Chapter Four, the article introduces the evolution and advancement of traditional civil contract in modern society. After the drafting of specialized state legislation, the format of civil contract and drafting custom changed gradually. At the end of Qing Dynasty, when the idea of western constitutionality was first introduced to China, the environment to apply traditional civil contract was destroyed. After the founding of People's Republic of China, with the advancement of socialist market economy and the improvement of civil legislation like Contract Law, the application of traditional civil contracts has been narrowed down. But because of the inherent reasons of the format and at the present stage, state power still can not be carried out without defects and with huge influence exerted by blood bonds and the constant transformation of its form taken into account, the traditional civil contract is still highly efficient and applicable in China, integrating into modern legislation and becoming the second legal mechanism acting in parallel to the national law.