A Study Of The Rights And Obligations Between The Seller And Buyer Of The Land With Graveyard Resulting From "selling Land But Keep Graveyard" In Qing Dynasty

In Qing Dynasty, the phenomenon of "Selling land but keep graveyard" was very popular, which gave rise to a relationship of rights and obligations to the both parties involved, which was strictly regulated not only by folk custom but also by the national law. This essay, on the base of the civil law, will analyze and study this custom.In the introduction, the writer first defines the "Selling land but keep graveyard", and then combining current academic studies, the writer tries doing research, from the perspective of law, history and society, into the regulation of the nation law and customary law of Qing Dynasty to this custom.The first chapter generalizes the rights and obligations to the both parties involved, and the writer thinks that the national law and folk custom of Qing Dynasty, on the whole, tend to protect the rights of the graveyard owner, and the neighbors’ obligation is comparatively wide, including material and spiritual tolerance obligation, assuming the taxation related to the graveyard. And the rights of the graveyard were also restricted, such as being forbidden from invading other areas outside the graveyard, being allowed to move the graveyard but not to bury, the grave time and routine.Considering that the dealing of graveyard is complicated in law, the strong awareness of protecting the graveyard always leads to lawsuit between the seller and buyer. In the second chapter, the writer, by analyzing the cause and solution, concludes that officials always based folk custom, reasonableness and initial agreement to deal with the dispute of both sides by official or folk coordination, instead of applying the national law.The third chapter, combining the cause and feature of rights and obligations between both parties and the perspective of modern law, points out that "Selling land but keeping graveyard" is a production of traditional culture, ruling rank’s will and folk custom, and is coordinately protected by both national law and folk custom.Worship at the ancestors in Chinese tradition and the fact of more population and less land made the prevalence of "Selling land but keeping graveyard" in terms of time span and regional span. Till 1949 when land system is transformed from private ownership to public ownership, "Selling land but keeping graveyard" or "Trading land but keeping graveyard" still existed in countrysides, and the rights and obligations to the seller and the buyer was not changed.