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The Custom and the Law on Dian

Author: WuXiangHong
Tutor: YangLiXin;HeZuoLun
School: Fujian Normal University
Course: Marxist Theory and Ideological and Political Education
Keywords: system of dian right of dian management living property pre-ownership the system of the grant of land from the state
CLC: D913
Type: PhD thesis
Year: 2008
Downloads: 277
Quote: 3
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Abstract

The "vadium mortuum" (dian) is a concept to be elaborated imported from western private law . The explanation of the traditional system of "dian" is based on the "delusion of ownership".When we give up the explanation of the waiver of the right and go back to the system lasting over a thousand years, the three fundamental sources of "dian" would be evident: the system of the grant of land from the state, system of patriarchal clan and religious belief. The operation of the system of "dian" takes the form of a dual structure: the folk customs and governmental written law are compatible. They are independent form each other and contradictory at the same time, resulting in a pluralistic jurisdiction in fact. However, it is the traditional law resulting from the traditions instead of the governmental written law that supports the operation of the system of "dian". This fact has great significance in the understanding of the basic structure of the civil legal system in ancient China. "Dian" is a system of "pre-ownership"developed in the macro environment of property monopolization. By analyzing living property, "dian" added a new way of trading in land property to the traditional "order of living property management". The price of dian is actually a loan quota amount in floating discount in installments. "Dian" can be also defined as a kind of loan without fixed term, with the price of dian as loan quota amount, and the yielding as floating discount in installments.The writer thereby proposes that the system of dian originated from loan activity within the group categorized by blood and geographical area. And this activity realized the transfer of land property with the management of living property as its objective.The trading of land property categorized by selling by Dian formed an effective market of essential factors, and leaded to the spontaneous and effective allocation of land and labour when the system of the grant of land from the state was ineffective. In the modern legislation of dian: "the consciousness of authority" obstructs the restatement of the system of dian in private law. Thus the representation of property of dian was degraded as the rigid and distorted "restatement" of the ancient bureaucracy.The right way is to take radical reform and to restate folk traditional law with concepts in private law. The result of the restatement is "standard dian theory" in the basic form of "presumption of standard dian".The standard dian theory gave up the "property presumption" which started from "Civil code version I"and has been lasting up till now.Instead, it put dian back to the field of discourse of "pre-ownership", and explains the object of dian as "bunch of right", and explains the act of dian as "a act of Conditional transfer of the property for the acquire of certain kind of loan without time limit and interest".The theory of standard dian provides a modern private law framework similar to the traditional dian system, and provides a broad and solid foundation for the legislation for dian in the future. An analysis of the land for construction, the right of management of land by contracting and the real estate of minor ownership reveals: under the highly monopolization of land today, the system of dian has great significance in providing a solution to the complicated issue of land problem in China. The system of dian needs to be adjusted and buffered. It is a crucial issue in the agriculture in China: the relation between peasants and land is unavoidable. The social demand remains huge. The problem is far from solved. Instead, it is covered up and delayed by the public ownership of land. Only when the issue is confronted, can the real value of the ancient system of dian be revealed.

The Custom and the Law on Dian

Abstract

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