A Study To The Evolution Of Legal Sources About Pledge Right From Late Qing Dynasty To The Republic Of China

In recent years,the practice of civil and commercial guarantee has been developing continuously,and the relevant legislation has been continuously updated.Compared with the mortgage,the pledge has more space for interpretation and operation because its objects include "rights".This characteristic can also be found in the history of legislation from the late Qing Dynasty to the Republic of China.Therefore,the study of it can be an important window to observe the legal transplantation that time.Apart from the introduction and the conclusion,this essay will be divided into four parts:The first part is mainly aimed at the source of law in late Qing Dynasty(1902-1911).For the official source of law,this essay will focus on the relevant chapters of Draft of Civil Law in late Qing dynasty,and mainly explains its difference when compared with the modern civil law.For the real estate quality right,the draft adopts a ten-year statute of limitations,and allows the right holder to enjoy the right to use the proceeds,while the movable property right part is characterized by the exemption of statute of limitations,and the right holder's advantage in the arrangement of rights and obligations.For this,this essay will carry out an analysis of the source of extraterritorial law,such as the rules of real estate quality rights from France and Greece,the special arrangement of rights and obligations in movable and real estate differences from Japan,the chapter arrangement in the pledge right are affected by both Japan and Germany.To the informal legal sources,this essay will summarize the local habits,which are allowed to be applied by the court during the absence period of the written law,and find that there are differences in various places such as setting method,arrangement of rights and obligations and etc.And the existence of the habits show characteristics like the diversification of the guarantee objects and the convergence of the guarantee modeThe second part is mainly aimed at the source of law in early Repulic of China(1912-1928).In terms of formal legal sources this essay will firstly explains the particularity of the legislative background that time,then focuses on the analysis of the changes and reasons of the new draft of civil law,such as the rise of the status of movable property rights in the rule system,the narrowing of the scope of the objects of the pledge of rights,the increase of the time limitation of the pledge of real estate.As for the informal sources that time,this essay choose jurisprudence of the Dali House.On the basis of explaining its nature,this essay divides the cases into three categories including cases keeping the same to the rules,cases explaining the rules and cases changing the rules.Then it is easy to find that the third kind of jurisprudence accounted for the majority.The third part will focus on the period after the declaration of the Civil Code(1929-1949).For the official source of law,this essay finds three major changes.Firstly,the re factoring of the rules system about pledge rights,rules for the real estate are deleted,while the lien is separated from the pledge right.In addition,the tendency of paying more attention to protecting the right holders,such as the restrictions on changing objects of rights pledge,but at the same time the Civil Code also carried out some measures to keep balance.Finally is the deletion of rules which are impossible to be adopted that time.As for the informal,it shows that the majority of cases tend to explain the law rather than changing that in this period.The fourth part is a summary of the revolution of legal sources about pledge from late Qing Dynasty to the Republic of China.In terms of formal sources,China's legislation started from transplanting law outside without consideration of social reality,ending up with a wiser choice.As for the informal sources,the phenomenon called "different sentences for the same case" appeared in the Beiyang government period,but finally our judges reach an agreement and stay away from the bad judicial habits.On the whole,the legal sources of our country's pledge right in this period finally combined the advantages from China and the West.Legal elicits that time won lots of achievements in this process at last.