中国传统民事契约格式研究

【作者】 唐红林；

【导师】 徐永康；

【作者基本信息】 华东政法大学 ， 法律史， 2008， 博士

【摘要】 民事契约是现实社会生活中财产和人身关系的载体,体现了社会机制存在和运行的状态。在古代社会漫长的实践过程中,民事契约行为受到国家法律和民事习惯的共同调整,逐渐形成了结构严谨的契文格式。本文选取西周至明清时期的民事文本契约,梳理传统契约格式的演变过程,分析国家法律和民间法在契约格式发展中的冲突和融合,阐释契文格式发展过程中所呈现的固定化和同一化的趋势和特点。第一章,西周至宋元时期是传统民事契约格式的初创和定型阶段。两汉时期在买卖契约中初步具备了格式的基本组成要件。魏晋之后纸张逐渐成为契约主要载体,促使单契形式广泛应用,在契文中也出现了争议解决条款。东晋为控制税赋,实行税契制度,出现官版契约即“红契”。唐朝继承魏晋的立法经验,加强了对民事契约的控制,对买卖行为实施投状申牒制度。宋元继承唐的契约制度,宋时期颁行“标准契约”力图对民间契约格式予以统一。在民间田房买卖过程中,立账问亲习惯也得到了国家立法的确认。宋元时期在民间也出现并广泛使用由私人所编著的契式范本,广泛适用于土地交易、婚嫁等不同领域,凸显民事契约格式逐渐定型化的趋势。第二章,明清时期是契约应用频繁的时期,从土地租佃和买卖、分家析产、婚娶等诸多民事领域中普遍订立契约,契文格式更是臻为完善,契文在契首、正文和尾部的组成要件呈现出固定化和同一化的趋势。在土地所有权关系中,私人占有土地成为明清时期封建国家土地所有制形式的主导地位,在民事土地租佃实践中产生永佃权,随着商品经济的发展,并逐渐形成田底权和田面权的“一田两主”的土地所有权形态,两种权利也可以自由让渡,形成大买契和小买契两种契约格式。土地所有权的转让中由于税契制度的弊端,导致民事实践中产生活卖和绝卖两种截然不同的契约格式,从活卖到绝卖过程中又产生了找帖习惯。同时,对在田房权利转让过程中产生的典契、活卖契和当契诸多差异进行对比分析。在分家析产中,分书和批契是对家庭共有财产分割的两种方式。分书遵循诸子均分原则,由尊长或诸子合意并订立分书。在婚姻关系中,分为女子婚嫁契和男子入赘契两种婚姻文书,在女子婚嫁契中又分为嫁娶婚契、嫁卖生妻契和退契的不同契约种类,并形成了固定的格式。继承了宋元时期的民事实践习惯和立法经验,构建了中国传统民事契约理念和制度的核心。第三,论述契约格式所具有的实践理性,阐释在血缘伦理社会中人们频繁订立契约习惯的成因。在契约的内在功能方面,契约以信、义、利为内在理念支撑以及契文由契首(包括批式、立契人、成契理由、中人)、正文(标的物、对价及交付方式、权利义务、契约效力担保)、尾部(立契时间、上手契交付和落款)三部分组成而形成内在理性。在契约适用环境来看,以唐代西州地区租佃习惯为剖析对象,从地理环境、现实需求、商品经济等三个方面客观分析国家立法和民事习惯之间的运行状态,展示民事契约习惯的韧性和实用性特点。第四章,对传统民事契约当事人予以分类,阐述当事人在现实生活中的地位对其行为能力的限制及影响。契约当事人是契约权利义务的承担者,由出契人和受契人组成。在契约实践中,涉及出契人的有庄仆立契、女子单独立契和“同书”(包括同子、兄弟、夫妻、叔侄、叔嫂以及其它类型)等出契现象,这些现象凸显了国家立法和民事契约习惯等级身份和家庭整体性的影响。与出契人的身份相对,在契约中特别是在土地契约中受契人多为血缘宗人和乡村商人。受契对象的狭窄源于传统社会中基于血缘关系的聚居生活状态、国家的重农抑商政策、契约当事人希冀契约目的实现等因素。第五章,阐述契约格式必备要件——成契理由的类型和特点。成契理由是契约当事人的交易目的,契约效力不可缺失的实际评判标准。成契理由宋元时期开始逐步确立并在明清时期得到普遍适用,根据客观情势和个人主观原因,可以分为国家税赋承担、管业不便或使用方便、家庭变故、经营无方或经营困难、历史问题的遗留以及其它原因等七种。在民事契约习惯中,“成契理由”呈现出表述内容和地域适用统一化的趋势。这些成契理由反映契约订立并非是出于完全的自愿,而带有救急的色彩,凸显了传统社会中民事契约所带有的救助性,进而揭露古代民事活动带有被动之特性。第六章,阐释中国传统民事契约制度中特殊的“中人”机制。几乎所有类型的契约订立都有中人的参与、签押。在历史上中人的称谓各不相同的,凸显其复杂多样的现实主体身份。中人作为民事契约的参与人,承担了见证、债务连带担保、标的物价格评定等契约辅助职能。在伦理社会中,中人的职能往往由亲族和乡邻承担,具有非职业性、非逐利性、义务性,凸显民事活动所带有的人格化特征,使得中人在国家权力机构无法为契约当事人全面提供救济之下,成为民间自发形成的一种纠纷解决机制。第七章,展示和阐释近现代社会传统民事契约习惯的存留和演变。晚清以来,西方法治文明的突入破坏了传统民事契约格式的适用环境,整体上击碎了传统民事契约习惯。但近代中国立法未系统整理民事习惯,经济基础、政治体制和社会意识未发生转变,导致国家立法和民事实践出现脱节,传统民事契约格式得以完整的保留并予以广泛适用。中华人民共和国建立后,通过社会主义改造,国家立法和政策在民间社会中贯彻执行也更为彻底。随着社会主义市场经济的渐趋形成,民事领域立法的逐步完善,传统民事习惯的生存空间日益狭小。现阶段由于国家权力资源的执行缺陷及血缘为基础的人身关系所具有强大的韧性,传统民事契约格式虽不断发生转变,但在中国广大地域特别是农村地区仍然具有适用效力,与现代的法治秩序相融合,形成国家法和民间法的二元机制。在漫长的中国发展历史中,国家立法和民事实践之间一直存在脱节状态,民事契约习惯迎合社会现实比并在其实践中不断发展并趋于完善,形成了一套完整的民事契约制度体系。传统民事契约格式具有的内在理念和形式理性,在中国古代的伦理社会也形成了一套完善的社会运行保障机制。传统民事契约格式所具有的实用理性在中国近现代法律转型和架构历程中依然具有其现实价值,在特殊的领域中仍然为人们所接受和遵循。更多还原

【Abstract】 Civil contract is the carrier of the property relationships and personal relationships in the real social life. It embodies the existing state and the operation mechanism of the society. During the far-flung practice, the civil contract behavior has been under the regulation of both state laws and the civil customs, and gradually the contract with strict and precise structure appeared. Taking the civil contracts in text from Xizhou to Ming and Qing Dynasties as example, the article lists systematically the transforming process of the format of traditional contracts, analyzes the conflicts and coordination of the state laws and the civil customs in this process, and demonstrates the characteristics of the "fixation" and "identicalization" trend in the development process of the contract formats.In Chapter One, the article introduces that the period from Xizhou Dynasty to Song and Yuan Dynasty is the period of creation and primary fixation time of the civil contract format. To the period of two Hans, the rudiment contract with comparatively complete elements appeared in the transaction contract. After Wei and Jin Dynasty, the paper had been widely used in drafting one contract, which caused the usage of "danqi(one simple textual contract)".And at the same time, the dispute settlement articles emerged. In Dong Jin Dynasty, for the purpose of controlling the tax, the government then put the contract tax policy into practice and the "red contract" was known as the official contract. Succeeding the legislation experience of Wei and Jin Dynasty, the Tang Dynasty enhanced the control of the civil contract and applied the policy of "asking for permission"( one kind of policy that specific seller should get the license or permission first to form one transaction contract.) Consistent with the former dynasties, in Song Dynasty, the "standard contract" was promulgated ,which tried to unify the civil contract format. When the transaction of houses happened, the custom of "appropriate separate accounts and ask for relatives’ opinions" was approved by the state laws. In the times of Song and Yuan Dynasty, the private -compiled model contract format was widely used in the transactions from the land selling to the area of marriage, which shows the trend of "fixation" of the civil contract.In Chapter Two, the article introduced that the contract was frequently used from the land renting and transaction, breaking up the family and living apart, to the marriage and many other civil areas in Ming and Qing Dynasties. The format of the contract was becoming complete, and therefore there appeared the trend of "fixation" and "identicalization" of the essential elements in the introduction, body and conclusion part of the contract. In the land ownership, private possession was the main form of the system of ownership in Ming and Qing Dynasties and "emphyteusis" came into being in the practice of land renting. With the development of the commercial economy , the rights in land gradually divided into the "lower land right" and the "upper land right", and the two kinds of rights can exchange freely, which causes the two kinds of contract format called "big contract" and "small contract". Because of the weakness of the contract tax in the land transaction, there appeared "lively sell"(pawn)and foreclose, two totally different kinds of contract format, and from "lively sell" to foreclose, the custom of "compensation(the creditor pay the extra money as the temporary price of land to the debtor)" formed. Meanwhile, the article analyzed the differences among the three kinds of contracts of "real property pawn contract", "lively sell contract" and "pawn contract" in the process of the transaction of lands and houses. In the process of breaking up the family and living apart, the "breaking up contract" and "living apart contract" are two methods to divide the property. The "breaking up contract" followed the principle that male heir get equal parts, it should be drafted by the respected old or agreed to by all the male heirs. In the contracts related to marriage, there existed the women marrying contract and the man marrying into contract(which means he will live with the wife’s family).For the women marrying contract, it can be divided into "marrying contract" and "marrying and selling contract", and both formed fixed format. Succeeding the civil practicing habit and legislation experience in Song and Yuan period, it has constructed the core of the traditional civil contract idea and system.In Chapter Three, the article demonstrated that the contract had made people create drafting contract habits frequently in the blood ethics society and analyzed the reason.In the aspect of inner function , the contract was built under the idea of belief, justice and interest and the form of introduction(including the parties, the drafting aim and the impartial person who is supposed to be a witness with authority), body (including the target thing, exchange price, rights and duties and the guarantee)and conclusion(including the drafting time, signature etc.).As for the applied circumstance, taking the renting habit of the Xizhou area in Tang Dynasty as example, the article analyzed the operation state of the state legislation and civil habit and showed the character of toughness and practicability of the civil contract habit.In Chapter Four, the article introduced that the parties are the carrier of the rights and duties, made up by drafter and acceptor .And the article summarized and classified the traditional contract parties.The qualification of the drafter has many limitations, for example, in the practice there are "master and slave" drafter, "female alone drafter" and "same drafter" which includes the same son, brotherhood, couple, cousin, uncle etc.. It demonstrated the limitation to the behavior ability of the state legislation and civil contract because of the status and the family unity. The acceptor in the land contract were usually nobleman and businessman, which is closely connected with the state of gathering living, the policy of "appreciating agriculture and restraining the commerce" and the protection to realize the aim of the contract.In Chapter Five, the article introduced the classification and characteristics of the reason for accomplishing contract, which is one essential element of the contract format. The reason for accomplishing contract is the trading aim of the parties and the inalienable judging criterion for the effectiveness of the contract. The reason for accomplishing the contract was formed from Song and Yuan Dynasties and was widely used in Ming and Qing Dynasties. According to the objective situation and the subjective reasons, the reason can be divided into seven groups as follows: the state tax burden, operating inconveniently or using conveniently, family misfortune, operating badly or hard, historical left-over or other reasons. In the civil contract customs, "the reason for accomplishing contracts" appeared the trend of unification of the contents and the district application. These reasons reflect that the drafting of the contract is not out of one’s own accord, yet they have the function of helping emergency, which shows the salvation character of the civil contract in traditional society, and thus the civil activity naturally is passive.In Chapter Six, the article demonstrated the special "impartial person" mechanism in the traditional civil contract system, and almost all kinds of contract with the joining and signing in the end of the contract of the "impartial person" during the drafting process. Different titles in the history shows the complex subject status in the reality. And the impartial person, as the involving party of the civil contract, carries the witness, guarantee, and assessment of the price and other assisting functions of the contract. In the ethics society, the role of the impartial person usually was played by the relatives or the neighbors, which makes the role has the character of non-professional, non-profitable and with obligation. Therefore the impartial person became one spontaneous dispute solving mechanism when the state power cannot supply comprehensive salvation to the parties of the contract.In Chapter Seven the article introduced that revelation and elaboration of the persistence and development of traditional civil contracts in modern society. At the end of Qing dynasty when the idea of constitutionality was first introduced to China, the environment to apply traditional civil contracts was destroyed and the practices were shattered on the whole. However, China didn’t sort out these civil practices systematically in its modern legislation and because there’s no significant change in economic foundation, political system, and social awareness, state legislation got adrift from civil practice. This is how the form of traditional civil contracts has been completely preserved. After the founding of People’s Republic of China, the implementation of state legislation has been enhanced to an unprecedented level through communist reconstruction and the setup of grassroots political units. With the advancement of socialist market economy and the improvement of civil legislation, the application of traditional civil contracts has been narrowed down. At the present stage, state power still can not be carried out without defects and with the huge influence exerted by blood bonds and the constant transformation of its form taken into account, the traditional civil contract is still highly efficient and applicable in China, especially the rural areas. In this sense, traditional civil contracts have been integrated into modern legislation and become the second legal mechanism acting in parallel to the national law.The disconnection of legislation and practice of traditional society leads to the unceasing development and self-improvement of civil contractual practice and even to a complete applying system of civil contracts. The internal idea and external rationality of traditional civil contracts made sure of its implementation in ancient China where morality was highly valued. Today traditional civil contractual form still shows its practical value in the course of legislative transformation and construction in modern China with its inherent rationality of pragmatism and is well accepted and observed in some special fields.更多还原