Contracts, Norms And Rural Order

During the middle and late period of Qing Dynasty, the socio-economy formation of the southern area of shannxi presented a special picture. In the rural district, the land transaction became exceedingly frequent, and the scope of division of land property was obviously expanded. These factors made the social order more and more complicated and changeable. Using the firsthand materials, such as folk land contracts, governmental lawsuit documents, legal investigation reports and ancient stone tablets, the author chooses land transaction and dispute as his objective of study, and then explores the problems about the peasant's economic behaviour and rural social order under the above-mentioned circumstances, especially from an angle of interdynatic factors between the nation and the society. The author will try to break the normal precedure in researching the mere contracts or lawsuits, and draw the experiences from the sociology and the science of law. The other main aim which the author wishes to achieve is to carry out a positive research with detailed description.The dissertation consists of five parts.1. The academic trend and relevant materials, concepts, methods. After reviewing the former achievements and thinking, the author finds several flaws, for example, they have failed to focus on the local characteristics of customs prevailing in the land transaction, and turned nation and society into binary relation and so on. The author believes that we will promote the research if we use firsthand materials and study them in a flexible, objective, careful and penetrating way.2. The background of constitutional laws. In this part, the author, unlike the other researchers, doesn't merely accept the fact that our traditional civil law was underdeveloped. Instead, he reorganizes the rules and regulations on title deed (税契) and then analyses the actual effect of the system. The author insists that the title deed was so severe that the common people dared not to evade taxes (certainly there were some exceptions), and that it was the most immediate and effective measure that the government took to manage the business. Furthermore, many important institutional arrangements covered by the other contents were revealed to reflect the complete picture of the history.3. The folk customs for land transaction. In this part, the author uses a great deal of firsthand materials to dwell on four types of folk customs梩he custom of premption (先买之习惯), the custom of reserve (除留之习惯), the custom of undesirable charges (陋规之习惯)and the custom of rent, which are divided into fifteen specific forms. The issues touch their source, background, variation, nature, formation, effect and so on. When it's necessary, the relation between the customs and the constitutional laws, the effects on the peasant's property right and daily life, the changes of the times are also discussed Meanwhile, the author picks out some cases in point for positive analysis, in which he pays his attention to both inherent advantageous factors and possible disadvantageous parts. The historical truth is faithfully reset and the customs themselves are given to objective judgement.4. Restraints laid on the order. Firstly, the author analyses the relation between the authority, status and order, and demonstrates that there were some weak individuals which were unfavorable in the land transaction. Secondly, from the form of contracts, the legal procedure and its force of constraint, we shall give affirmative evaluation to the contracts. The author give an account of local customs about the constructive function on order, meanwhile, points out its ambiguity, initiative, traditionalism as well as legal distinction and contradiction and so on. What's more, we should take a proper attitude toward the customs. Fourthly, the author widens his horrizon to the judicial field so as to investigate the function of law from three aspects of legislation, judiciary and the people's legal activities, immigration are also discu...