漢代買賣之債研究
發(fā)布時間：2019-04-19 07:25
【摘要】：漢代是我國封建社會的重要階段,其政治法律制度逐步完善,并對后世影響深遠。以往學術界對漢代法制的研究,多側(cè)重于“刑法”和“行政法”方面,對“民法”規(guī)范的研究雖有力作,但基本上限于某一側(cè)面。本文以法律史學的視角,運用現(xiàn)代法學的相關理論和方法,借鑒相關學科的研究理論與成果,嘗試對漢代買賣之債進行較為深入和系統(tǒng)的研究。 一時代之學術研究,必須借助于新發(fā)現(xiàn)、新材料。取用此材料,以研求老問題,乃為做學問之通路。筆者本著古為今用、實事求是的嚴謹態(tài)度,精心搜集歷年在甘肅、敦煌等地出土的漢簡及其它地方的摩崖、碑記、買地券、考古資料、陶文和一般文獻中的契約錄文,力爭廓清漢代買賣契約發(fā)展之本來面貌。 漢代真正承擔債務、履行債務的當事人包括國家、社會組織、家(戶)和個人。但就家庭與個人而言,往往緊密結(jié)合。漢代個人是家庭(戶)甚或家族的一分子。他們雖然可以與外界發(fā)生經(jīng)濟交往,但是與現(xiàn)代民法中的民事主體不同的是:漢代個人無“私財”,與外界之間的債務一般是以家庭的財產(chǎn)作為償還。而不像現(xiàn)代民法中,民事主體與外界之間債務首先是以個人財產(chǎn)來償還,只有在特殊情況下,個人財產(chǎn)不足償還債務時才以家庭的財產(chǎn)來償還。漢代劃分民事行為能力的主要依據(jù)是立戶,只有具備戶主的身份才可以自己的名義參與經(jīng)濟交往,享有權(quán)利,履行義務。一個人即使已經(jīng)成年,如果不是戶主,也沒有資格獨立地參與重大經(jīng)濟活動。 本文按照標的性質(zhì)的不同,詳細探討了目前我們所能見到的各種買賣契約文書。漢代買賣契約種類已經(jīng)比較齊全,既有買賣土地房屋的不動產(chǎn)買賣契約,也有動產(chǎn)買賣契約。對此筆者既有宏觀的制度分析,也有具體個案考察,并對買賣契約的程式內(nèi)容進行了歸納。 漢代關于買賣之債的制度已有債的履行、擔保以及國家的監(jiān)督和管理制度。漢代買賣之債的消滅形式主要有清償和抵消二種。漢代買賣之債的擔保形式也己經(jīng)多樣化,其常見的擔保方式為信用擔保,此外還有瑕疵擔保和追奪擔保。其中信用擔保又分為賒買契約、賒賣契約和俸祿擔保。賒買和賒賣契約以中人為保證人,俸祿擔保則是以國家權(quán)威機關的聲譽作為買賣之債履行的擔保。這反映了漢代高度重視對債主經(jīng)濟利益的保障。漢代買賣債法的突出特點體現(xiàn)在漢代官府對債的積極調(diào)控方面。從靜態(tài)來看,漢代官府對買賣契約的管理主要體現(xiàn)在對商品的價格規(guī)定上。從動態(tài)來看,在債的發(fā)生、履行過程中,官府一直積極干預,以確保債主的經(jīng)濟利益。 漢代買賣債法在中國古代債法史上占有重要地位。它上承先秦,下啟晉唐,處于承前啟后的重要歷史階段。漢代買賣債法與先秦的相比,具有債的內(nèi)容規(guī)范化、債的標的多樣化、債的擔保多元化、債的當事人廣泛化。由買賣之債的當事人、買賣契約制度等方面都可以看出,晉唐買賣債法就是對漢代的進一步發(fā)展和完善。筆者把漢代買賣債法的社會作用歸結(jié)為三點:首先,體現(xiàn)商品交換關系的買賣契約打破了身份界限,在一定程度上促進了人與人之間的平等關系的發(fā)展;其次,婦女可作為契約訂立的當事人,在一定程度上解放了社會生產(chǎn)力;最后,國家對買賣契約的積極干預維護了社會穩(wěn)定,促進了商品經(jīng)濟的健康發(fā)展。 法律不是憑空產(chǎn)生的。它反映了一個民族物質(zhì)文明之發(fā)展,記載著一個民族制度文明之演變,刻錄下一個民族精神文明之積淀。中國“古代民法”雖然不能完全適應近代生活的需要,但它們是在中國社會長期發(fā)展中積淀形成的,承載著我們民族的價值理念與秩序觀念�！巴洑v史意味著背叛”。余論記述了筆者寫本篇論文的一點感受,希望能與廣大法律同仁共勉。
[Abstract]:The Han Dynasty is an important stage of China's feudal society, and its political and legal system is gradually improved, and it has a far-reaching influence on the later generations. The research on the legal system of the Han Dynasty in the past academic circles has focused on the "criminal law" and the "administrative law", but the research of the "civil law" standard is not limited to a certain side. This paper, based on the angle of legal history, uses the relevant theories and methods of modern law to draw on the research theories and achievements of the relevant subjects, and tries to carry on a more in-depth and systematic study of the debt in the Han Dynasty. In an era of academic research, new discoveries, new materials, Take this material to study and ask for the old question, it is the way of learning. The author, based on the rigorous and realistic attitude of the past and the present and seeking truth from facts, has carefully collected the records of the Cliff, the inscription, the purchase of the vouchers, the archaeological materials, the Tao Wen and the general literature of the Han and other places, which have been unearthed in Gansu, Dunhuang and other places in the past years. On the Original Surface of the Development of the Purchase and Sale Contract in the Han Dynasty In the Han Dynasty, the parties involved in the debt and the performance of the debt included the State, the social organization and the family (the household). and individuals. But for families and individuals, they tend to be tight A family (family) or even a family. Although they can interact with the outside world, the civil subject in the modern civil law is different from the civil subject in the modern civil law: there is no "private wealth" in the Han Dynasty, and the debts with the outside are generally the property of the family In that modern civil law, the debt between the civil subject and the outside is first paid in the form of personal property, and only in exceptional circumstances, the property of the family is the property of the family only when the personal property is insufficient to pay the debt. The main basis for dividing the capacity of civil conduct in the Han Dynasty is that of the family, only the identity of the head of the household can participate in the economic communication in the name of his own, and enjoy the rights and the shoes. The obligation of a person. A person, even if he is an adult, is not entitled to participate independently in a major passage if he is not a head of the household. In accordance with the nature of the subject matter, the article discusses the various kinds of purchase that we can see at present. The contract of sale and sale of the Han Dynasty has been relatively complete, both of which have the property of the sale of land and the purchase and sale of the real estate, as well as the action of the contract. The author has a macroscopic system analysis, a specific case study, and the program content of the purchase and sale contract. In the Han Dynasty, the system of the debt of the buying and selling of the debt has been fulfilled, the guarantee and the state Supervision and management system. The form of the elimination of the debt in the Han Dynasty is mainly To pay off and cancel the two kinds. The guarantee form of the debt in the Han Dynasty is also diversified, and its common form of guarantee is the credit guarantee, and there is also a flaw The guarantee and the pursuit of a guarantee, in which the credit guarantee is divided into the contract of credit and the sale on credit. The guarantee of the contract and the credit. The contract of credit and credit is the guarantor. The guarantee of the credit is the reputation of the state authority as a trade. The guarantee of the fulfillment of the debt. This reflects the high priority of the Han Dynasty to the creditor's debt The guarantee of economic benefit. The outstanding characteristics of the debt law in the Han Dynasty are reflected in the government of the Han Dynasty. From the static point of view, the management of the purchase and sale contract of the official government of the Han Dynasty is mainly embodied in the market The price of the product is specified. From the dynamic point of view, in the event of the debt, the official government has been actively involved in the performance of the debt, so as to ensure The Economic Interest of the Principal of the Debt. In the Han Dynasty, the Debt Law of the Han Dynasty is in China's Ancient Debt It holds an important position in the history of law. It is in the pre-Qin and down-the-start of the Jin and Tang dynasties. Compared with the pre-Qin period, the law of buying and selling bonds in the Han Dynasty has the advantages of the standardization of the content of the debt, the diversification of the subject matter of the debt and the diversification of the security of the debt. As can be seen from the parties involved in the buying and selling of the debt, the trading contract system, it can be seen that the law of the sale of the debt in the Jin and Tang Dynasty is for the Han Dynasty. The author puts forward the social function of the debt law in the Han Dynasty to three points: first, the contract of buying and selling the commodity exchange relationship breaks the identity limit, and promotes the development of the equality relation between the person and the person to a certain extent; secondly, the women can The parties to the contract have liberated the social productivity to a certain extent; in the end, the State's active intervention in the sale of the contract has maintained social stability and promoted The healthy development of the commodity economy. The law is not produced by the air. It reflects the development of a national material civilization and records the evolution of a national system civilization. The Chinese "ancient civil law", though not fully adapted to the needs of modern life, is formed in the long-term development of the Chinese society, carrying our people The value and order of the family. Yal. ". The remainder of the paper describes the author's experience in writing this paper,"
【學位授予單位】：鄭州大學
【學位級別】：碩士
【學位授予年份】：2009
【分類號】：D929;D923
本文編號：2460739
[Abstract]:The Han Dynasty is an important stage of China's feudal society, and its political and legal system is gradually improved, and it has a far-reaching influence on the later generations. The research on the legal system of the Han Dynasty in the past academic circles has focused on the "criminal law" and the "administrative law", but the research of the "civil law" standard is not limited to a certain side. This paper, based on the angle of legal history, uses the relevant theories and methods of modern law to draw on the research theories and achievements of the relevant subjects, and tries to carry on a more in-depth and systematic study of the debt in the Han Dynasty. In an era of academic research, new discoveries, new materials, Take this material to study and ask for the old question, it is the way of learning. The author, based on the rigorous and realistic attitude of the past and the present and seeking truth from facts, has carefully collected the records of the Cliff, the inscription, the purchase of the vouchers, the archaeological materials, the Tao Wen and the general literature of the Han and other places, which have been unearthed in Gansu, Dunhuang and other places in the past years. On the Original Surface of the Development of the Purchase and Sale Contract in the Han Dynasty In the Han Dynasty, the parties involved in the debt and the performance of the debt included the State, the social organization and the family (the household). and individuals. But for families and individuals, they tend to be tight A family (family) or even a family. Although they can interact with the outside world, the civil subject in the modern civil law is different from the civil subject in the modern civil law: there is no "private wealth" in the Han Dynasty, and the debts with the outside are generally the property of the family In that modern civil law, the debt between the civil subject and the outside is first paid in the form of personal property, and only in exceptional circumstances, the property of the family is the property of the family only when the personal property is insufficient to pay the debt. The main basis for dividing the capacity of civil conduct in the Han Dynasty is that of the family, only the identity of the head of the household can participate in the economic communication in the name of his own, and enjoy the rights and the shoes. The obligation of a person. A person, even if he is an adult, is not entitled to participate independently in a major passage if he is not a head of the household. In accordance with the nature of the subject matter, the article discusses the various kinds of purchase that we can see at present. The contract of sale and sale of the Han Dynasty has been relatively complete, both of which have the property of the sale of land and the purchase and sale of the real estate, as well as the action of the contract. The author has a macroscopic system analysis, a specific case study, and the program content of the purchase and sale contract. In the Han Dynasty, the system of the debt of the buying and selling of the debt has been fulfilled, the guarantee and the state Supervision and management system. The form of the elimination of the debt in the Han Dynasty is mainly To pay off and cancel the two kinds. The guarantee form of the debt in the Han Dynasty is also diversified, and its common form of guarantee is the credit guarantee, and there is also a flaw The guarantee and the pursuit of a guarantee, in which the credit guarantee is divided into the contract of credit and the sale on credit. The guarantee of the contract and the credit. The contract of credit and credit is the guarantor. The guarantee of the credit is the reputation of the state authority as a trade. The guarantee of the fulfillment of the debt. This reflects the high priority of the Han Dynasty to the creditor's debt The guarantee of economic benefit. The outstanding characteristics of the debt law in the Han Dynasty are reflected in the government of the Han Dynasty. From the static point of view, the management of the purchase and sale contract of the official government of the Han Dynasty is mainly embodied in the market The price of the product is specified. From the dynamic point of view, in the event of the debt, the official government has been actively involved in the performance of the debt, so as to ensure The Economic Interest of the Principal of the Debt. In the Han Dynasty, the Debt Law of the Han Dynasty is in China's Ancient Debt It holds an important position in the history of law. It is in the pre-Qin and down-the-start of the Jin and Tang dynasties. Compared with the pre-Qin period, the law of buying and selling bonds in the Han Dynasty has the advantages of the standardization of the content of the debt, the diversification of the subject matter of the debt and the diversification of the security of the debt. As can be seen from the parties involved in the buying and selling of the debt, the trading contract system, it can be seen that the law of the sale of the debt in the Jin and Tang Dynasty is for the Han Dynasty. The author puts forward the social function of the debt law in the Han Dynasty to three points: first, the contract of buying and selling the commodity exchange relationship breaks the identity limit, and promotes the development of the equality relation between the person and the person to a certain extent; secondly, the women can The parties to the contract have liberated the social productivity to a certain extent; in the end, the State's active intervention in the sale of the contract has maintained social stability and promoted The healthy development of the commodity economy. The law is not produced by the air. It reflects the development of a national material civilization and records the evolution of a national system civilization. The Chinese "ancient civil law", though not fully adapted to the needs of modern life, is formed in the long-term development of the Chinese society, carrying our people The value and order of the family. Yal. ". The remainder of the paper describes the author's experience in writing this paper,"
【學位授予單位】：鄭州大學
【學位級別】：碩士
【學位授予年份】：2009
【分類號】：D929;D923
【參考文獻】
相關期刊論文 前10條
1 胡留元，馮卓慧;羅馬法與中國古代契約法[J];法律科學.西北政法學院學報;1995年05期
2 羅海山,王一;中國古代田宅買賣契約的條款[J];大慶高等�？茖W校學報;2003年02期
3 李玉生;;中國古代法與現(xiàn)代民法債和契約制度的比較研究[J];法學家;2005年05期
4 梁鳳榮;論中國古代買賣契約中擔保的形式與特色[J];河南大學學報(社會科學版);2005年04期
5 翟麥玲;漢代女子的經(jīng)濟活動[J];華南農(nóng)業(yè)大學學報(社會科學版);2005年01期
6 姚桂芳;;江陵鳳凰山10號漢墓“中服共侍約”牘文新解[J];考古;1989年03期
7 朱江;李猹昭;倪振逵;張寄庵;;南京近郊六朝墓的清理[J];考古學報;1957年01期
8 吳天穎;;漢代買地券考[J];考古學報;1982年01期
9 李祝環(huán);中國傳統(tǒng)民事契約中的中人現(xiàn)象[J];法學研究;1997年06期
10 蔣維德;從漢律看我國古代的民事立法[J];內(nèi)蒙古大學學報(哲學社會科學版);1987年01期
相關博士學位論文 前1條
1 謝全發(fā);漢代債法研究[D];西南政法大學;2007年
相關碩士學位論文 前1條
1 陳蘭蘭;漢代簡牘中的私文書研究[D];吉林大學;2004年
，本文編號：2460739
本文鏈接：http://www.sikaile.net/falvlunwen/fashilw/2460739.html
