Pavel Dudin1, A.I. Tsyretorov
  • 1 Buryat State University, 24a Smolina Str., Ulan-Ude, 670000, Russian Federation.

Formation of Civil Law in China in 1912–1929

2019. No. 5. P. 237–253 [issue contents]
In the article, the authors based on unpublished earlier in Russian language materials,study the process of civil law formation as an independent branch of law in China, payingspecial attention to the beginning of the 20th century, when the Chinese legal systementered the modernization period. That period is characterized by the existence of aphenomenon of the absence of regulatory and legal material that regulates property andpersonal non-property social relations that form the basis of civil law, with the activities of the Supreme Court of the Republic of China. The court’s presidents, having receiveda brilliant legal education, by relying on general principles of law, applying establishedlegal customs, interpreting the old Qing legislation and doctrinal interpretation of draftlaws, managed to create a unique law enforcement practice. In the framework of the legalsystem that takes most of the legal positions and constructions from the Roman-Germanlegal family, the judicial precedent, without being formally declared as a source of law,actually took the predominant position in the hierarchy of sources for a decade and a halfbefore it was adopted in 1929-1931, the first and only civil code of China. This situationbecame possible due to the fact that the leadership of the Qing Empire, long trying tokeep the country in international isolation, as a result, was forced not only to open citiesand ports for foreigners but also to actually take full advantage of the European right,mostly German, French and Belgian, etc. However, blind copying of legal norms did notgive the desired result, and the political struggle after the abolition of the monarchy andthe abrogation of the previous legislation created a legal vacuum that needed to be filledin by the judiciary and other law enforcement agencies. That allowed the Supreme Courtof China not only to ensure the uniformity of judicial practice but also to become a lawmakingbody, adapting the existing legal norms to the needs of contemporary reality.The Supreme Court summarized and systematized its own decisions for the first 7 yearsof activity, from 1912 to 1918, publishing them in the form of a collection of abstracts.In 1920 the collection was partially translated into English, and in 1924, into French. In1923 it was supplemented with new jurisprudence and translated into Russian, but notpublished. And, despite the fact that the legal system of the PRC does not consider itselfto any extent the successor of the legal system of the Republic of China, the study ofthe sources of law of the period 1912–1949 is a prerequisite for the fulfillment of themain function of any science — the growth of new knowledge, and in relation to legalscience — understanding of legal traditions and approaches to solving problems andregulating social relations, which are also characteristic of modern Chinese society.
Citation: Dudin P., Tsyretorov A. (2019) Stanovlenie grazhdanskogo prava Kitaya v 1912–1929 gg. (predkodifikatsionnyy period) [Formation of Civil Law in China in 1912–1929]. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 5, pp. 237-253 (in Russian)
Rambler's Top100 rss