中國物權法制定에서의 慣習法의 位相

Recently, after the establishment of New China, China has attached importance to the role of law as the improvement of the legal system has been continuing ever since the late 1970s, where reform and opening-up policy initiated as the means of adapting a market economy. Prior to that, under the highly planned economy, China has historically despised the rule of law institutions premised on modern market economy. At that time the status of national legislation were worth the Chinese Communist government’s policies. Moreover, the interpretation of the law was not developed under the influence of officialism and a traditional theory that there should not be more than one legal interpretation. Because there was no chance for Customary Law in such structure of a society, room for Positive Law was not able to exist either. To borrow the term from the paper of Chinese legal scholar, it was so-called the history of “A big tradition that absorbed the smaller tradition.”On the other hand, the plurality of developed legal culture from an old history of Chinese culture, reflected through the creation, would not be overlooked. First of all,despite the invasions by Western powers, China’s reunification have been maintained. Therefore, both foreign and indigenous Chinese legal cultures - that is, larger tradition focusing on national legislation and Customary Law based on a small tradition - were present at the same time. Since the establishment of new China, the legal theory of Marxism-Leninism and the former Soviet laws have influenced China, which was a socialist state governed by the Communist regime. But unique legal cultures of China such as the dual configuration of state ownership and collective ownership of land were also being maintained. Furthermore,the legal culture of China today is even more diversified by the introduction of the reform and opening policies premised on the market economy in Western Empires. On the other hand, China's long history of opposition between the people and government has existed in different forms with other countries. A relatively stable society was maintained when the confrontation was accepted by the government within a certain range. But the uprising was broken out if the government had imposed draconian measures. In other words, presence of the emperor was in the distant and where the world they belong - under the common law - it is possible to act boldly. According to another modern version, there is a saying that 「Green light means walk slowly, yellow light means run quickly and red light means take a detour」. It’s interpretation is related to one’s interests. If one’s personal gain is permitted by law, he should proceed without concerning. If the state is slowly planning to take control over it by the National Law,he should act quickly. And if the gain is prohibited by National Law, he should make a detour. The phrase 「make a detour」 could be interpreted as two ways; do not act unlawfully or to evade law. But the Chinese usually comprehend the latter as the true meaning. This could be considered as wisdom of the people consequent upon the instability of the law, the volatility of the policy in the New China. Nevertheless, behavior that are regarded to be illegal should be included in the scope of legality in a certain time or to a range, because the present value of National Law could be eliminated if it is bypassed frequently. China could not avoid the conflicting cases of interdependence and contradiction between National Law and Customary Law. And between those two, not only 「coexistence」 relation but also 「antagonistic」 relation exist, which become more significance of legislative reform after China’s reform and opening. As it is closely related to legislations written above,recent studies on customary law in China are now proceeding as vigorous as ever and it could be seen clearly in legislation of Chinese Property Law.