Study On The Republic Of China Of Civil Adjudication In The Daliyuan

In the second decade of this century,China’s“Civil Code of the People’s Republic of China”(hereinafter referred to as“The civil code”)was finally formally implemented in the midst of thousands of calls,article 10 of the Civil Code stipulates that custom can be applied in dealing with civil disputes when there is no legal provision,which has aroused heated discussion among scholars.The process of Chinese legal modernization is a process of imitating the western legal system,but in the process of legal transplantation,the traditional inherent law of our country,that is,civil custom,has not received due attention,the spirit and value of the traditional law rooted in our history and culture are ignored.In the early years of the Republic of China one hundred years ago,the Dali Court made a balance in the conflict between the inherent law and the transplant law by invoking custom in civil judgments,that is,it absorbed good habits into the law,it also promotes the integration of transplantation law into China’s legal system.However,at present,in the The Rise of Modern China period,the legal circle is more inclined to study the “Six laws complete book system” after the late Qing Dynasty’s law reform and the establishment of the Nanjing National Government,there are few studies on the development,evolution and value of law in the early years of the Republic of China,and most of them are confined to the analysis of institutional history.Therefore,from the perspective of legal culture,the thesis will examine the customary citation in the civil judgments of the Dali Court in the early years of the Republic of China in the course of the modernization of Chinese civil law.First of all,we must explain that the Dali court is the customary reference in the Republic of China in the beginning of this special historical period of the system.Its particularity is mainly mentioned now: first,the society is mixed with the old and the new,the popular idea is conservative,the influence of the traditional civil custom is deep-rooted;second,the late Qing dynasty to the Beiyang Government Period’s civil law modernization is more difficult,two drafts of the civil law were stillborn,the civil legal norms were seriously inadequate,and had to use custom as the basis for the trial;It provides the system guarantee for the customary citation.Dali court used to cite a deep historical and cultural foundation.In the thousand-year history of China from the publication of written law to the end of Qing dynasty,the contents of the official code were mainly criminal norms,while the civil norms attached to criminal norms accounted for a relatively small proportion.The official transfer of the right to handle civil disputes to the grass-roots civil society,thus the development of civil customs,and national laws in harmony,from the ruling group to the civilian recognition of the effectiveness of civil customs.Moreover,the two custom investigation activities at the end of the Qing dynasty and the beginning of the Republic of China collected local customs into written records,which provided convenience for the judicial organs to quote.It is of great significance to observe Dali Court’s customary citation in the context of the modernization of Chinese civil law.The harmonious co-governance of Chinese traditional customary law and national law was broken after the transplantation of Western law in the late Qing dynasty and the early Republic of China,and the conflict between customary law and national law intensified.Judicial Trial is the final solution to civil disputes,so the court’s decision is the focus of the conflict between customary law and national law.It is the key to ease the conflict of law between China and the west and promote the integration of the two.On the one hand,in the process of customary invocation,good custom can enter into national law through case law system,which reduces the conflict between customary law and transplant law.On the other hand,Dali Court denied bad habits and used transplant law to reform and replace customary law,accelerating the process of transplant law into Chinese society.However,we can not ignore the fact that Dali court has too much pandered to the Western legal system and abandoned the traditional Chinese legal culture represented by Dali court,and the cost of the extinction of the local legal resources in China can not be underestimated.To sum up,it is of great significance for our country to deal with the conflict of Law Transplantation,protect the local resources of rule of law,and learn the experience and lessons from the customary invocation of civil adjudication in Dali Court,it also plays an important role in understanding the contribution of Dali court in the course of legal modernization of our country in the early Republic of China.