On The Kinsman’s Preemptive Right In The Shicang Contract In The Late Qing Dynasty And The Early Republic Of China

Land preemption refers to the right of specific legal subjects in traditional society to purchase other people’s land according to laws or customs.According to the different subjects who have the preemptive right,the preemptive right can be divided into the the right to buy relatives,the right to buy first,and the right to buy neighbors.It was negated by the national law during the Ming and Qing dynasty and gradually became a folk custom.Shicang contract collected thousands of land transactions contract documents from the early Qing dynasty to the period of the republic of China.In the Shicang contract,the Que family contract accounted for the absolute majority,while the Que family contract is mostly the internal transaction contract,so it had certain advantages to choose the Shicang contract to study the purchase right in the late Qing dynasty and early period of the republic of China.At the end of Qing dynasty and the beginning of the republic of China,the Shicang contract has been developed and matured,gradually forming the characteristics of the formatted contract.Compared with the sales contracts in other areas during the same period,the relative transaction contracts in the Shicang contracts has prominent characteristics.First,Shicang contract in the content is relatively simple,the main trading subject is Que surname.Second,in the land transaction of Shicang area,relatives still keep the habit of preemption,and the proportion of relatives preemption increased in the late Qing dynasty compared with the early Qing dynasty.Third,the relative transaction in the Shicang contract does not harm the interests of the seller,the relative transaction price belongs to the normal market price.In addition,kinsmen played an important role in the signing of the shicang contract.Therefore,from this point of view,the kinsmen’s pre-purchase right in the shicang contract of the late Qing dynasty and the early republic of China did not show a state of decline.At the same time,it can be seen from the side that the patriarchal clan system is closely related to kinsmen’s pre-purchase right.Since Ming and Qing dynasty,Qing government began to forbid the relatives in the land transaction to buy first,which was mainly because the existence of the relatives to buy first made the relatives transaction possible to depress the price,thus damaging the interests of the seller,resulting in increased disputes.However,from the perspective of Shicang contract,the transaction price within the relatives will not harm the interests of the seller,most of the relatives are normal market price.The existence of the right of first purchase by relatives cannot prove that the relatives own the ownership of the land,and the restrictions of the relatives in the process of land sale are more formalized constraints,which cannot materially affect the sale of land.In the Shicang contract of the late Qing dynasty and early republic of China,the most important foundation for the existence of preemptive right is the kinship and clan community.Kinship trading can reduce the outflow of land,maintain the material foundation of the clan,and ensure the development of the clan.At the same time,the stable development of the clan can also provide a reasonable condition for the existence of the relatives to get preemptive right.From the perspective of the transaction process,the relatives get preemptive right to ensure the security of the transaction,reduce the transaction risk,and improve the efficiency of the transaction.In addition,the relatives transaction in the Shicang contract is also conducive to the integration of land resources,facilitating the land management.More importantly,kinfolks get preemptive right to have a certain reciprocity and mutual benefit,in line with the characteristics of ancient human society.