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Dien in China and Vietnam

Published online by Cambridge University Press:  23 March 2011

Henry McAleavy
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Extract

There are several reasons why the legal institution of dien . (generally, but, as will be shown, erroneously rendered in English as “mortgage”) should be of interest to the student of Chinese and Vietnamese law. First of all, it merits attention on account of its very wide use, a fact which has been recognized by its incorporation, in a modified form, into the Chinese Civil Code. Then again it affords a striking example of an attempt by the Chinese government in Imperial times to develop by legislation the scope and purpose of an institution of private customary law, and of the way in which customary law asserted its vitality in face of the legislator by surviving unchanged into modern times. And lastly it illustrates, by the erroneous interpretations that for 150 years have been put upon it by European lawyers, the pitfalls that lie in the way of anyone who tries to explain Far Eastern legal concepts in European terms.

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Articles
Information
The Journal of Asian Studies , Volume 17 , Issue 3 , May 1958 , pp. 403 - 415
Copyright
Copyright © The Association for Asian Studies, Inc. 1958

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References

1 I adopt the spelling “dien” (which apart from accent is also Vietnamese) to conform with the usage of Chinese lawyers who have written in English. For the same reason, I use the forms “dien-maker” to describe the person who receives the dien-price and in exchange gives his land in dien, and “dien-holder” to describe the person who pays the dien-price and in exchange receives the land in dien.

2 Book III, Chap. 8, Arts. 911–927.

3 Philastre, P. L. F., Le code annamite, 2nd ed. (Paris, 1909), I, 460Google Scholar.

4 Noboru, Niida, “Kan Gi Riku-chō ni okeru saiken no tampo,” Taōyō gakuhō (Tokyo), XXI (Oct. 1933), 91–103Google Scholar; “Tō Sō jidai ni okeru saiken no tampo,” Shigaku zasshi, XLII, (1931), 1111–1177Google Scholar.

5 Philastre, I, 501.

6 Han i araha nonggime toktobuha manju gisun i buleku bithe, ch. 22, hūdašara hūlašara hncin. 1, sub verbo “bojilambi.”

7 The Civil Code of the Republic of China, Ching-Lin Hsia, James L. E. Chow, and Yukon Chang (Shanghai, 1930). I ought, however, to make it clear that I have not attempted in this article to discuss dien as it exists under the Civil Code.

8 Philastre, I, 458–460.

9 It is interesting to notice that this same substitution occurs again in Art. 93 of Gia-Long. See Philastre, I, 488. I must here express my thanks to the authorities of the Biblio-thèque Nationale for allowing me to have a photograph of the Chinese text, and to Madame Guignard of that library who most kindly took the trouble to find me a copy suitable for such reproduction.

10 Philastre, I, 395.

11 Philastre, I, 463.

12 Shun'ichi, Suginohara, “Ten no hōteki seishitsu,” Hōritsu jihō (Tokyo), XIX, No. 1 (Jan. 1947), 31–34Google Scholar (at 31). Philastre, I, 461.

13 Suginohara, p. 32.

14 Taiwan shihō (Tokyo, 1910–11), I, Pt. 1, p. 699; Suginohara, p. 32.

15 Taiwan shihō, pp. 668–669; Suginohara, p. 31.

16 Jamieson, G., Chinese Family and Commercial Law (Shanghai, 1921), p. 59Google Scholar, says erroneously: “Unless the old owner comes forward to redeem, the new occupant becomes absolute owner without further process.”

17 For sub-dien, see Taiwan shihō, pp. 701–704.

18 Taiwan shihō, p. 705.

19 Suginohara, pp. 33–34.

20 Chūgoku nōson kankō chōsa, III (Tokyo, 1955), 284–285.

21 Philastre, I, 459.

22 Taiwan shihō, pp. 234–246.

23 Taiwan shihō, p. 232.

24 Philastre, I, 458.

25 In Jamieson, p. 86, we find this passage translated “the land shall remain the property of the first purchaser.”

26 Edgar Matthieu, La propriété fondcière el ses modalités en droit annamite (Paris, 1909), p. 136, note 2, says: “II est à noter qu'en effet le législateur chinois admet en principe le vol de choses immobilières.”

27 Suginohara, p. 32.

28 Taiwan shihō (reference material), I, Pt. 2, p. 153.

29 Taiwan shihō (reference material), p. 148.

30 Taiwan shihō, p. 666.

31 Suginohara, p. 32.

32 Philastre, I, 465, n. 2; Taiwan shihō, p. 669.

33 Jamieson, pp. 85–86.

34 Jamieson, p. 89; Taiwan shihō (reference material), p. 127.

35 Taiwan shihō, p. 670.

36 Jamieson, p. 87. Jamieson translates as if it was the dien-holder who carried out the sale, but there can be little doubt it was the dien-maker who was the vendor. See Taiwan shihō, p. 674. As we have noticed above, this law appears in the 1768 edition of the Ch'ing Code. Philastre, I, 464, translates it from a revised version of 1801.

37 For text, see commentary to Ch'ing Code, ch. 9, (hu-lū, t'ien-che), under “tien-mai t'ien-che.” Analysis in Taiwan shihō, pp. 654–655.

38 Jamieson, p. 88; Philastre, I, 469.

39 Taiwan shihō, p. 670.

40 Taiwan shihō, pp. 678–679.

41 Suginohara, p. 32.

42 I have made no attempt to inquire into the administration of dien by the French. Indeed, it would not be possible except in France or Vietnam to do any serious work on Vietnamese law in the period of French rule.

43 Philastre, I, 461.

44 Philastre, I, 464.

45 Philastre, I, 465.

46 Philastre, I, 465.

47 Philastre, I, 469–471. It is clear that by the 19th century the provision of the Lê Code (Art. 383 in Deloustal's translation) that the right of redemption was lost after 30 years had been altogether forgotten.

48 See below.

49 Philastre, I, 473. Gage is the nantissement of a movable; antichrèse of an immovable. We have seen that in fact there is no reason to follow Philastre in thinking Vietnamese law extended dien to all movables.

50 Taiwan shihō, pp. 674–675.

51 Taiwan shihō (reference material), pp. 149–150. The Japanese editors, rather strangely, say that this transaction, although nominally dien, is actually a transfer of the whole interest. This is surely to miss the point. Staunton, whose translation of the Ch'ing Code still exercises considerable influence on European lawyers, has probably had some part in disseminating error. He says (Ta Tsing Leu Lee, p. 101, note): “The mode here described of lending money upon landed security, is a very ancient and frequent practice among the Chinese, and though certainly a species of mortgage, will be seen to be modified by some peculiar regulations.” Jamieson, who is sound on this point, says, p. 99: “contrary to the usual terms of a mortgage, it is the land that is lent and not the money, which latter cannot be demanded back.”

52 Philastre, I, 473.

53 For the position of vendor and buyer in vente à réméré see Planiol et Ripert, Traité pratique dedroit civil français, 2nd ed., (Paris, 1956), X, Pt. 1 (by J. Hamel, F. Givord, A. Tune), pp. 227–229. Jamieson, although he reluctantly calls dien a mortgage, seems in effect to regard it in all circumstances as a form of vente à réméré. Thus he says, p. 89, n. 1, that dien “differs from an actual sale only in that it leaves the seller the right of getting his land back.” And by suggesting, as in the passage quoted in note 51 above, that it is the dien-maker and not the dien-holder who is the creditor, he makes the dien-maker's position very like that which the general opinion among modern French lawyers seems to give to the vendor in vente à réméré.

54 Studies in the Law of the Far East and Southeast Asia (Washington, 1956), p. 46Google Scholar.

55 Cf. Hsin chien-she Monthly (Peking, April 1957), pp. 62–63.