The Land Disputes And Their Solutions Of Taiwan In The Late Qing Dynasty

From “Dan-Xian archives”, we can sum up the litigation procedures caused by local Yamens ofcounties trials in Qing Dynasty, including “putting forward”,“telling investigation” and “final judgment”.In the proceedings, it’s often seen that county executives advised the parties take private settlement way inlate Qing Taiwan Province. As a whole, it proved the negative attitude in Chinese traditional society. Fromthis negative attitude can be very intuitive to see the magistrate judge civil how to bring to trial for thegeneral concept, namely due to cause cases rarely related to state and public interests, magistrate wasmissing from the national law of pressure, in the actual operation and no statutes may, therefore tend topursue “no litigation” or mediation. As for this idea, how can it specifically produce and play a role? Theanalysis to state law and customary law can be very good evidence. In the Qing Dynasty, folk land relationis while under state law and the customary law in two aspects of the regulation. The two are mutuallymatched with each other, but on the whole, the state law tends to maintain the order of feudal society andruling basis. In “Qing national law statutes”, on private land disputes can be sensitive response, one is inthe payment of taxes, one is made up of little things change caused by the syndrome cases--the formerinvolves the financial income of the government, the latter relates to the feudal social order; relative to thenational law, customary law on land between regulation is more practical, more profound, in the land ofstatic flow relationship, customary law relates to almost every aspect about behavior of farmer individual,customary law adjustment range so deeply and widely, already formed a kind of benign order not allowedto be destroyed. By “Dan-Xian archives” land dispute case analysis, we can even infer that the majority ofland disputes in the customary law is violated the order. Due to the order of law is on the basis of thetraditional patriarchal concept of ethic foundation in our country ancient times, its regulation is static,customary law order is strict, but ethics is often not mandatory, order also doesn’t have the ability to repairitself. So when the order was destroyed, disputes appeared. When the farmers cannot resolve it, they will goto the authorities.Including the land dispute, the civil dispute resolution mechanisms, has been always discussion anddebate focus among the legal historians. The research is a long-term item, while remarkable achievements are made. But the controversy makes this problem’s discussion value increasing. Among them,“in cases ofjudge” are inclined by many scholars, including Huang Zongzhi. But through the analysis and summary on“Dan-Xian archives”, we found “in cases of judge” is excessively theoretical. But specific cases seldomfollow Qing statutes trial cases by magistrates, most of the country’s law as a principle behind. The reasonthat “in case of judge” proposition be proposed, professor Lithan thought it is the research method isimproper, because of excessive dependence on western existing theory often resulted in neglect ofgrass-roots civil disputes and trials of the complicated situation. Therefore, the research of the solvingmechanism about civil dispute in late Qing Dynasty should not be in accordance with the theoreticalanalysis approach only. Withal, the Japanese professor Hesiusan points out a feasible way, he thought that“there is another way on the study of source of law, or rather an essential way. That is, focusing on thepractical action scene, through the analysis of trial instance to reveal what was as a trial basis.” In thepractical action scenes, mediation plays an important role. As the mediation has a long history and bringsconvenience, both the public and the government tend to be adjustable. On the view of institution,mediation and customary law order also has an inevitable relation. The repair to customary law order bymediation is mild and effective, unlike state law, so rude, and therefore, taking the mediation as a trial casebasis, not only supported by realistic examples, but also be reasonable on system level. In addition,magistrate’s personal factors should also be considered. In civil justice area with a situation of “not evengood officials can settle family troubles” and no laws could be according to, magistrate was actually verydifficult to work. He had to choose an acceptable method by all, so that the outcome of the trial is not onlyconducive to their own figure, but also could repair the ancient order of rural society.