Study On The Legal History Of The Decline Of Permanent Tenancy Right In Modern Times

The emergence of the permanent tenancy right in China was the result of the reclamation encouraged by the Song Dynasty government.Farmers helped the government to reclaim official fields.As compensation,the government granted the permanent tenancy right to the peasants.A farmer with a permanent tenancy right would be allowed to work the land forever if he did not owe the rent,and the state promised it would never increase the rent.Gradually,this kind of right also began to appear in the civil fields,but until the middle of the Ming Dynasty,the free disposal of the permanent tenancy right was prohibited.After mid-Ming Dynasty,this kind of restriction was gradually broken,and the permanent tenancy right gradually elevated from the tenant right to the partial ownership of land.In this way,there were two independent ownership rights on a piece of land —— the ownership of the original field owner(“Field Bottom” right)and the ownership of the permanent tenancy holder(“Field Surface” right),and “One Field Two Owners” appeared.At this time,permanent tenancy holders can not only dispose their rights freely,but also delaying payments,because rent arrears can no longer be the landlord’s reason for withdrawal.Because of this,many tenants became to resist rent or dealy payment deliberately,and local taxation sometimes be affected severely.Since the end of the Qing Dynasty,the permanent tenancy right was weakened severely due to a series of official practices,though it had been laid down by statute officially.Legislatively,the duration of permanent tenancy right was shortened,and the original meaning of “permanent tenancy” disappeared.The way that the permanent tenant obtained the right was strictly restricted,and in practice,some owners often took the opportunity to deny the established permanent tenancy right.Sublet and pawning right of the permanent tenants were deprived,and the permanent tenants were not allowed to transfer their rights freely.The landlord’s right to withdraw tenancy expanded greatly,traditional habit of “even if land rent fall into arrears,they can also keep their land” was broken.Judicially,to make the trial result more acceptable,Da Liyuan,the supreme judicial body when Peking government was in power,admitted part of the content of permanent tenancy right in the common laws,however,it still damaged the permanent tenancy right a lot for multiple reasons.In the period of Nanjing National Government,Judicial Yuan,the hightest adjudicative organ,forcibly equated “Field Surface” right with the permanent tenancy right which had been impaired a lot in modern times.In society in general side,even before authorities took action,customary rules which was help to ensure the stability of the permanent tenancy right,such as “never to increase rent and never to withdraw farmland” and “even if the farmland has been sold to others,the tenant peasant can still keep cultivating”,had been broken.And after government took a stand,the infringement of permanent tenancy right in the folk was intensified,a series of extralegal reasons for increasing rent and removing tenancy were created.In modern times,official suppressing coupled with landowner’s infringing made the permanent tenancy right weaken in power and quantity.The decline of permanent tenancy right has not changed until the end of modern times.The decline of permanent tenancy right in modern times is not a accident,so why do authority and private land owners have to restrict and suppress permanent tenancy right? As for the authority,first,the permanent tenancy right is not matched by the interests of the ruling class.Undoubtedly,the permanent tenancy right hinders the development of capitalist business and agriculture.Second,“Dual Ownership”theory implicated in traditional permanent tenancy habit and the principle of “One Property,One Right” in civil law of civil law system contradict each other.Modern legislators and judicators who believed that civil law countries’ law theory was “the most advanced” were going to reform the permanent tenancy right which does not in conformity with the principle of “One Property,One Right”.Last,the permanent tenancy right hinders the realization of the goal of “Land To The Tiller”.To complete the goal,the authority had to destory permanent tenancy right.As for landlords,land rent generally rose in modern times,but permanent tenancy right stopped landlords to get higher land rent.In order to get higher land rent,a series of traditional habits such as “never to increase rent and never to withdraw” must be abandoned.Because of this,lots of permanent tenancy rights got hurt.Permanent tenancy rights,the one which had been in flourish for many years,finally became the dust of history.