On The Chinese Modern Mortgage System Changes

Based on essential contents of the institution of pawning right in traditional Chinese society, this paper expounds on the institution of pawning right, in terms of the evolution of pawning in history and the transition from pawning to pawning right. The main text includes four parts:To begin with, a panorama of the history of pawning in ancient Chinese society is presented. Firstly, the long existence of pawning as a traditional approach of transactions is confirmed, based on the historical evolution of pawning, and pawning in its process of evolution has developed into a systematic regulation. Then I analyze the essential contents of pawning, which illustrate that, although systematic theories of civil law have not made any abstraction or summation of it, a relationship of right and obligation has still come into being. Furthermore, distinguishing pawning from its similar concepts, the complexity of pawning institution and its causes are expounded under the situation without any developed civil law theories in ancient China.In the second part, the absence of pawning institution when laws were revised in late Qing dynasty is introduced. For the purpose of changing the situation, when China had been in laggard and suffered foreign invasions since the Opium War, and under the pressure of foreign powers as well, the Qing government began to reconstruct Chinese legislation. Civil Law Draft of Qing Dynasty was thus enacted. Although Western concepts and systems of civil law had been introduced into China during that time, because of the lack of relevant experts, China' s legislation had to be reconstructed by some Japanese scholars in civil law. The traditional Chinese institution of pawning was misunderstood as immovable properties by these Japanese experts. Reasons why traditional pawning institution was absent from national legislation are analyzed at last.The third part mainly deals with the reform of traditional institution of pawning during the period of Beiyang government. The application of law during the early stage of the Republic of China is at first introduced. Then disputes of pawning in legislation practices are examined through some cases. In addition, the reconstruction of traditional pawning right institution through cases by Daliyuan represents the integration of traditional pawning right with Western ideas of property right, making it develop into the pawning right under Western ideas of property right. Finally, in Civil Law Draft the Beiyang government regulated a modern pawning right institution with systematical reconstruction.In the forth part, the modern pawning right institution was firmly established in Civil Law of the Republic of China. After its integration with Western principles of property right, traditional pawning right institution was enacted as a specific chapter in Civil Law of the Republic of China. Thus the modern pawning right institution came into being. This process of legislation demonstrates that, when legislating Civil Prescription, the Nanjing government not only transplanted foreign civil laws, but also inherited domestic recourses of civil law. This provides us with a helpful experience for legislating civil law.