A Study On Pawning Right Of The Republic Of China

There were legal provisions on the pawning right very early in ancient China. During the Tang dynasty, the pawning right had been shaped, which is followed by later ages. Usually, the owner of real estate is compelled to pawn his land or house to others to receive the price. The person who has the pawning right enjoys the rights of occupying, using and profiting. The nature of the pawning right in ancient China was usufructuary right accordingly. The Modification of Laws during the Reform of the late Qing Dynasty had carried out the investigation of civil custom to "Harmonization and Transfixion" for the purpose. The Draft Civil Law of Qing Dynasty abandoned the China’s traditional pawning right system and provide it as the pledge of real estate by recognizing it as the real rights for security legally, for the reason that the Draft Civil Law of Qing Dynasty was referred to continental law system such as Germany and Japan, as well as there was no corresponding to China’s traditional pawning right system in the Roman Law. However, there were still many pawn behaviors at that time. The absence of pawning right in laws had caused plenty of trial confusions. The Draft Civil Law of Qing Dynasty did not promulgate and implement because of the collapse of Qing Dynasty. The government of the Republic of China had to face up to this traditional social phenomenon afterwards. After the government carried out the investigation of civil custom, the Draft Civil Law of the Republic of China took a compromise to provide both the pawning right and the pledge of real estate. The Civil Code of the Republic of China, which was passed during the Nanjing KMT regime period, retained the China’s traditional pawning right and modernized it, instead of the pledge of real estate.Provisions on the pawning right system in the Civil Code was referred to the ones of "The pawning of land and house" in the Codex and Regulations of Qing Dynasty, the cases judged by Ministry of Revenue of Qing Dynasty, the Regulations to resolve disputes on the pawning of real estate and the Draft Civil Law of the Republic of China. The Civil Code of the Republic of China, which absorbed the idea of Western civil law, implemented the pawning right provisions into codified legal systems and completed modern transformation of pawning right, on the base of fully respecting for traditional legal culture and facing up to the state of country and folk. The pawning right is located in the eighth chapter of part of Real Rights of the Civil Code. The provisions on pawning right, which have17articles from Article911th to Article927th, mainly include the pawning right’s definition, terms, contents, acquisition and extinction. The Civil Code has determined that the nature of the pawning right is usufructuary right, which has made the judicial practices more conducive. Even today Taiwan still follows the pawning right system. The pawning right which is the product of the feudal society is still used in Taiwan in the information age. We are Chinese descendants as same as Taiwan compatriots. We need to reflect and draw on the experience of Taiwan.