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Appendix No. 17.
Extract from the Introduction to a Translation of Books IV. and V. of the Civil Code of the of the Republic of China,
By the Hon. Foo Ping-sheung, LL.D.
As shown in our Introduction to the translation of Books, I, II and III,* the traditional Chinese legislation, in contract to the individualistic and centralistic legislations of the Occident, was centred on the family. At the bottom of our social organization was the clan consisting of a-certain number of families generally bearing the same name and descending or presumed to have descended from a common ancestor. The family, rather than the individuals who form it, was considered as the elementary cell, the fundamental constituent group of society.
In order to turn China into a real State, in the modern sense of the word, Dr. Sun Yat Sen thought it necessary to substitute for the primitive notion of unity of clan or family, the notion of unity of the population formed by these clans or families. The particular interest of the isolated groups had to yield to the general interest of the nation. To put into practice this new ideal and to enable the citizens to-to make use of their personal abilities to the best interest of their country, it was imperative that the excessive grip of the old family ties over the individual should be loosened.
Apart from this theoretically sound reasoning in favour of a transformation of the old traditional regime of the Chinese family, there are other reasons of a purely practical character, inspired by a high sense of equity.
For some time past Chinese statesmen have been deploring the primitive economic conditions under which most of their countrymen are living, and they have traced the origin of this unhappy state of affairs to the "parasitism" engendered by the clan organisation. The bond between members of the same clan has been so strong under the old system that tradition usually imposes on a certain member the burden to support those who are unable or simply unwilling to work for their livelihood. He has thus around him a train of dependents whom he must feed out of the produce of his land if he is an agriculturist. If he is engaged in trade or industry, he must take them as assistants or employees. If he is an official, he has to procure positions for them. The system prevents the free development of the individual virtues of the best part of the population, and encourages idleness among the worst elements. The community is consequently burdened with a large proportion of useless, idle and unproductive persons.
Another regrettable feature of the family system based on ancestral worship is the unjust discrimination between man and woman. The woman being incom- petent to exercise ancestral worship and being excluded from succession to it was, as a consequence, also excluded from succession to property. Her position in the family was not so much that of a person sui juris as that of a sort of "appendage" to the man. On the other hand, the necessity of having male descendants for ancestral worship led to the creation, and later on to the legalization, of concubinage to which the husband was allowed to resort when he had no male issue from his legiti- mate wife.
The provisions of the new Civil Code, applying the principles adopted by the Central Political Council, have introduced, on the above-mentioned points, the neces- sary alterations or extenuations.
First of all, ancestral worship is no more regulated by law. The Code does not abolish it but ignores it, and thereby deprives this old custom of legal sanction. The system of agnatic succession to property consequently disappears. Sons and daughters are treated on the same footing and they share in equal parts the inherit- ance of their parents (Art. 1138).