Über die Autorinnen und Autoren

Von der hinteren Coverseite

Aus dem Klappentext

Auszug. © Genehmigter Nachdruck. Alle Rechte vorbehalten.

Contract and Property in Early Modern China

STANFORD UNIVERSITY PRESS

Contents

List of Tables and Figures.......................................................................................................................................................viiIntroduction MADELEINE ZELIN, JONATHAN OCKO, ROBERT GARDELLA....................................................................................................................1Part 1. Contract and the Establishment of Property Rights1. A Critique of Rights of Property in Prewar China MADELEINE ZELIN.............................................................................................................172. Writs of Passage in Late Imperial China: The Documentation of Practical Understandings in Minong, Taiwan MYRON L. COHEN......................................................373. Litigation, Legitimacy, and Lethal Violence: Why County Courts Failed to Prevent Violent Disputes over Property in Eighteenth-Century China THOMAS BUOYE.....................944. Property, Taxes, and State Protection of Rights ANNE OSBORNE.................................................................................................................1205. The Status of Contracts in Nineteenth-Century Chinese Courts MARK A. ALLEE...................................................................................................1596. The Missing Metaphor: Applying Western Legal Scholarship to the Study of Contract and Property in Early Modern China JONATHAN OCKO...........................................178Part 2. Contract and the Practice of Business7. Supplemental Payment in Urban Property Contracts in Mid to Late Qing Shanghai FENG SHAOTING..................................................................................2098. Managing Multiple Ownership at the Zigong Salt Yard MADELEINE ZELIN..........................................................................................................2309. Custom, the Code, and Legal Practice: The Contracts of Changlu Salt Merchants in Late Imperial China MAN BUN KWAN............................................................26910. Companies in Debt: Financial Arrangements in the Textile Industry in the Lower Yangzi Delta, 1895-1937 TOMOKO SHIROYAMA.....................................................29811. Contracting Business Partnerships in Late Qing and Republican China: Paradigms and Patterns ROBERT GARDELLA.................................................................327Chinese Names and Terms..........................................................................................................................................................349Bibliography.....................................................................................................................................................................359List of Contributors.............................................................................................................................................................379Index............................................................................................................................................................................381

Chapter One

The penal emphasis of [Chinese] law, for example, meant that matters of a civil nature were either ignored by it entirely (for example, contracts) or were given only limited treatment within its penal format (for example, property rights, inheritance, marriage).... What really concerned the law-though this is to be surmised rather than explicitly read in the Chinese legal literature-were all acts of moral or ritual impropriety or of criminal violence which seemed in Chinese eyes to be violations or disruptions of the total social order.... When this law appeared, however, it was used neither to uphold traditional religious values nor to protect private property. Rather, its primary purpose was political. Bodde and Morris 1967

The history of China's use of contracts is a long one. Its beginnings were probably in primitive times. Today the oldest surviving contract for which we have a text we can verify, for which there is an actual object to investigate, is a bronze inscription from the Western Zhou. After the Western Han this kind of material is found in every period. Zhang Chuanxi 1995

HOW DO WE reconcile these two snapshots of Chinese legal culture?-one in which the law of the state, and by extension its agents in the field, pays only glancing attention to the economic relationships that exist between individuals; and one in which written agreements between individuals play a major, if not dominant, role in those same transactions. One solution would be to assume that private justice prevailed in the economic realm, and some scholars have taken that approach to Chinese legal history. In his pathbreaking work on Chinese customary law, Liang Zhiping (1996) argues that the virtual disappearance of state-owned land in the late imperial period encouraged a laissez-faire attitude toward private transactions that resulted in the elaboration of a rich and diverse body of customary practices in the Chinese countryside. These customs, many of which are documented in the early-twentieth-century survey published as Zhongguo minshang shi xiguan diaocha baogao lu (A record of a report on Chinese customs relating to civil and commercial affairs), are seen as taking the place of civil law, but leading to a multiplicity of practices in matters relating to property. If indeed the state remained detached in such matters, declining to set the rules of the game and encouraging disputants to seek justice elsewhere, particularly through guild, lineage, or village mediation, then it would be difficult to speak of rights of property except as a highly localized phenomenon. Such a fragmented and fickle property regime could hardly form the basis of a large-scale commercial economy, much less encourage industrial investment.

This approach was far easier to accept when scholars like Bodde and Morris were writing. Access to the records of magistrates, the lowest-level officials within the Qing bureaucracy, and the officers charged with handling all matters of a legal nature at the local level was limited. During the period between the fall of the Qing and the Communist victory in 1949, the quest for modernity turned most scholars' attention away from the activities of imperial local officials. Indeed, almost anything related to the imperial bureaucracy was tainted with the brand "feudalism" and assumed to present few lessons for Republican Chinese. Archival research of this kind was even more difficult during the second half of the twentieth century. It is not surprising, therefore, that most work on Chinese law relied on codified law, administrative regulations, and a small number of official memoirs, handbooks, and so on.

Since the early 1980s, the opportunity to examine property rights in action, particularly through the lawsuits brought to a magistrate's yamen in the late Qing and early Republic, provides an alternative solution to our dilemma. No one who has spent time exploring the documents of a Qing county yamen could come away assuming that the state was of marginal importance in...