Research On The Judicial Practice Of Emphyteusis In The Republic Of China

The permanent system is one of the tenants in China.In the long process of development and evolution,it has gradually evolved into different forms of expression.From the initial eternal,that is,the tenants have long-term and even permanent without rent arrears.The right to cultivate the land of the landlord,and the landlord shall not arbitrarily increase the rent and withdraw,but the tenant has no right to transfer the right.In the Ming and Qing Dynasties,a new manifestation emerged—"One Field,Two Masters"—that is,the land is divided into two parts,the field surface and the bottom of the field.They are owned by the landowners and the landlords.The two sides are free to dispose of their respective land without going through each other.It is agreed that the landowner has the obligation to pay the rent to the landlord,but the landlord can not be the reason for the withdrawal.The legal term of emphyteusis originated from Roman law.With the evolution of time,a complete legal system of usufructuary rights has gradually formed in the western legal system.Although the eternal rights and the eternal system have similarities in content,there is a huge difference in the nature between the eternal rights of the state-developed law and the eternal system as a folk custom.At the end of the Qing Dynasty and the beginning of the Republic of China,the Qing government introduced the system of permanent rights in the process of the revision of the Daqing Civil Law Draft.With the introduction of the Western eternal rights system,its operation will inevitably conflict with China's inherent eternal habits,and because of the political turmoil during the Republic of China(1912-1930 period),the state has not been able to introduce relevant eternal rights.Laws and regulations,therefore,how the system of permanent rights under the national perspective has always been an unsolved problem.Through the analysis of the jurisprudence of the Yongli Court and the Jiangsu High Court,this paper explores how the judiciary used the existing legal resources to try the Emphyteusis case during the Republic of China,and formed the system of permanent rights in the trial process,as well as the central and local What is the internal logic and evolution of the system of permanent ownership established by the judiciary.This article is divided into four parts:The first part is mainly summarized from the historical evolution of the permanent tenancy,the legislation and the judicial period of the Republic of China.First of all,it briefly clarifies the manifestation of the eternal system,that is,the initial permanent tenancy and Yitian two masters belong to different manifestations of eternal system in different periods,and the historical evolution of eternal system;secondly,at the legislative level,Comparing the Daqing Civil Law Draft,the Draft of the National Civil Law and the Chinese Civil Code,it can be found that in the legislative concept,the legislators are guided by the Western legal concept and hope to reform the permanent system.Habit and denial of the two masters,thus establishing the legislative trend of the permanent right system in line with China's national conditions;finally,at the judicial level,it can be found that the judicial organs in the process of judicial practice through the dialectical adoption and creation of Western legal principles and folk customs,build The corresponding system of permanent rights has emerged.In the second part,through the analysis of the jurisprudence of the privilege of the Dali Institute,firstly,in the case of the lack of statute law,the trial basis of the Dali Court's trial of the eternal power dispute is mainly:law,habit,organization and jurisprudence;secondly,summary The connotation of the right to eternal rights:the nature of the rights,the way of production,the rights and obligations,the reasons for extinction,the duration,the reasons for the increase of rent,and so on and compared with the content of the eternal habits.The third part compares the jurisprudence of the Dali Institute and the Jiangsu High Court and finds that the Jiangsu High Court follows the Dali Institute's judicial concept and insists on using the Western method to explain the traditional eternal relationship.At the same time,it has also innovated on the basis of the Dali Institute's judicial concept.Through the acceptance of local customs,we will build a system of permanent rights with local characteristics.The fourth part discusses the thoughts arising from the judicial practice of the permanent right in the Republic of China.By exploring the identification and reform of the judicial habits of the Republic of China during the Republic of China,it concludes that the dual structure of the customary and national laws coexisted in the system of permanent rights in the Republic of China.