The Theory Of Right Of Common During The Period Of The Republic Of China

Right of common is a special form of ownership, is a kind method of property. In ancient China, although there is a form of property common, But there is no modern theory of ownership. The theory was introduced into China in the late Qing Dynasty and developed during the Period of the Republic of China.Firstly, this paper analyzes the concept of the property in traditional society. In that society, Patrimonialismus was the core, there was no individual ownership. However, the existence of total property relations is “gong ye”. But “gong cai” isn't common This paper reviews the Republic China's right of common legislation. From the “The civil law of Great Qing dynasty(Draft)”to “ The Civil law of the Republic of China(Draft)”and then to " The code of Civil law of the Republic of China ", constantly revise legislation showed the joint ownership theory has gradually moving improvement.Then, we discuses that the maximum power of right of common theoretical development is abundant practice justice. During early period of the Republic of China, at the situation of lack formal legislative right of common, through jurisprudence and interpretation, Parlement making right of common theory into practice and sublimated. Using inherent habit to improve right of common theory, and this theory also solve practical problems, which make right of common theory more local flavor. We can say that the supreme judicial organ and local court had played a very important role.This article also points out the people's attitude towards right of common theory. Scholars wrote books, and actively participate in interactive legislative, judicial, and promote the development of right of common theory. The ordinary people hardly affected by this theory, people living in accordance with the existing old customary manner. When their own interests infringed upon, people will consciously take legal means to defend its interests. To file a lawsuit to the judicial organ, the people will consciously use Legal language, and the current legal theory. By this way, such as right of common western legal theory into judicial practice, accepted by the public as much as possible.