略论唐宋家产均分继承制度

发布时间：2018-06-19 14:22

本文选题：家产 + 继承权　；参考：《河南大学》2012年硕士论文

【摘要】：唐宋是我国古代社会比较发达的时期，与之相应，其继承制度也日臻完善。家产均分继承是中国封建社会最基本的继承原则，到了唐代它被引入法律，宋袭唐制，家产均分继承制度更加成熟，其在继承法中的地位也更加稳固。本文试分析唐宋时期家产均分的继承制度，进而总结出这一制度的特点和深远影响，希望从中得出某些启示，为我们今天和谐社会的构建提供一些有益的借鉴。本文从四个方面来探讨。首先详细介绍了家产均分继承方式的形成过程及诸子平均析产的方式。以诸子平均析产为主干的传统家产继承方式定型于战国时期，其理论渊源为儒家的平均思想。商周时期，推行分封制度，财产继承附属于天子的王位继承和贵族的爵位继承；而社会中下层的平民庶人没有爵位，传给子孙的仅是财产，这时候单纯的财产是可以任意分割的，只不过此时期地广人稀，相对于劳动力来说，土地处于次要地位。随着宗法制度的松弛，大量的平民庶人从宗法制的束缚中解脱出来，变成了独立户头的个体小农，而财产继承上以往独大的局面被诸子平均分配所取代，到了汉代财产均分已经普遍推行，至唐代成为定制。唐宋诸子平均析产方式包括多次性析产承户方式和一次性析产承户方式。多次性析产承户方式是指父母在世的时候儿子们随着结婚而陆续分家析产，但是每个儿子分得家产的数量略小于其应得的平均数，待父母年迈或去世之后，再最后一次分清。在这种方式下，一般家庭的分家次数为儿子的个数再加一。这种方式在商鞅变法之后直秦朝比较盛行，汉代注重孝道，便限制着多次性析分这种方式的实行。一次性析产承户方式是指父母在世的时候不分财不异居，待父母去世之后，兄弟们一次性分清家产。这种方式是在儒家孝悌观念的倡导下产生的，唐宋社会主要实行这种方式。其次探讨唐宋亲子家产均分继承的实况考察。主要包括两个方面的内容：第一，介绍唐宋亲子的家产继承权，亲子的范围是指“只要是父母承认的婢幼血亲，，不分嫡庶、长幼、男女、遗腹子、别宅子”，他们都有继承家产的资格，但均分的对象仅限男性子嗣。第二是在继承权考察的基础上通过当时社会具体的实际案例来探讨唐宋社会亲子家产继承权的司法保护情况。文章具体通过对围绕妾生子发生的家产继承争讼，围绕别宅子发生的家产继承争讼和围绕遗腹子发生的家产继承争讼的考察，进而得知，唐宋社会亲子的家产均分的继承权利在大多数情况下还是能够得到很好的保护的。接下来介绍唐宋养子的家产继承。首先介绍养子的选立范围，其次探讨在没有亲子的家庭，一般收养养子来养老送终、继立门户，此时养子的继承权等同于亲子；在既有亲子又有养子的家庭，养子与亲子均分家产；到了南宋，如果养子是近亲尊长所立，只承担继立门户的义务，则此时称为命继，最多只能继承家产的三分之一，这不属于本文重点讨论的对象；在既有养子又有上门女婿的家庭，则养子与女婿均分家产。如果养子没有尽到孝养养父母，承继养父母家庭门户的义务，还会丧失继承权。再在考察养子继承权的基础上通过对养子家产继承纠纷实况的考察来了解当时司法运作对养子权利的保护。文章具体通过立继子与亲子之间发生的家产继承争讼、异姓嗣子之间发生的家产继承争讼、养子与女婿之间发生的家产继承争讼以及嗣子丧失继承权四个方面来考察的。最后是对唐宋家产均分继承的特点和影响的总结。家产均分继承是以宗法礼制为前提和基础进行的均分，在均分的过程中，体现出维护宗法礼制和保护幼弱的特点，应该说是“有限度的均分”，并不是盲目地将一切家产在数学概念上的绝对平均。家产均分继承方式下诸子平均析分家产，诸子们依托祖父辈流传下来的家产里继续着诸子析分，一代又一代，使中国社会出现了“富贵无三辈”谚语和真实写照。古代中国社会中小农是主体，中国社会的财富不能像日本、西欧等国家和地区那样进行大规模的积累，因而诸子平均析产的方式对中国社会的历史进程产生了一定的影响。在血缘亲情产生的向心力和财产利害产生的离心力之间，使家庭人际关系不断的在倾向与平衡中维持着。此外，诸子平均析产方式在客观上消极地助长了人们思想上的惰性，也抹杀了我们中国人的创新意识。
[Abstract]:Tang and Song Dynasty is a period of more developed ancient Chinese society, and its inheritance system is becoming more and more perfect. Family equal inheritance is the most basic principle of inheritance in Chinese feudal society. In the Tang Dynasty, it was introduced into the law, the song system of the Tang Dynasty, the inheritance system of the family property is more mature, and its status in the inheritance law is more stable. This article tries to analyze the Tang Dynasty. In the Song period, the inheritance system of the equal distribution in the Song Dynasty, and then summed up the characteristics and far-reaching influence of this system, hope to draw some inspiration from it, and provide some useful reference for the construction of our harmonious society today.
This article is discussed from four aspects.
First of all, it introduces the formation process of the way of inheritance and the way of the average analysis of production. The traditional inheritance mode of the traditional family property, taking the average analysis of production as the main factor, is fixed in the Warring States period, its theoretical origin is the Confucian average thought. In the Shang Zhou period, the feudal system was carried out, and the inheritance of property inheritance was attached to the throne and the aristocracy. The common people in the middle and lower strata of the society have no title, the only property passed to their descendants is only property, and the simple property can be divided at this time. Only in this period the people are rare, and the land is in a secondary position relative to the labor force. With the slack of the patriarchal system, a large number of common people are removed from the shackles of the patriarchal law. It has become an individual small farmer, and the past independence of property inheritance has been replaced by the average distribution of the people in the Han Dynasty, which has been widely carried out in the Han Dynasty and became custom-made in the Tang Dynasty. It means that when the parents are alive, their sons are successively separated with their marriage, but each son is slightly less than the average number they deserve, and the last time after his parents are aged or dead. In this way, the number of families in the family is added to the number of children. This way is in Shang Yang's transformation. After the Qin Dynasty, the Qin Dynasty was more prevalent. The Han Dynasty paid attention to the filial piety and restricted the implementation of the multiple sex analysis. The one-off family analysis means that when the parents were in the world, the brothers did not differ in their wealth. After the death of their parents, the brothers separated their family property. This method was produced under the advocacy of the Confucian filial piety and fraternity concept, and the Tang and Song society was the main reality. Do this in this way.
Secondly, it discusses the fact survey of the parent-child inheritance in the Tang and Song dynasties. It mainly includes two aspects: first, it introduces the inheritance rights of the parents of the Tang and Song dynasties. The scope of the parents is that "as long as they are recognized by the parents, the blood relatives of the maidservant, the young, the young, the men and women, the children and the house", they all have the qualifications to inherit the family property, but they are equally divided. The elephant only limits the male offspring. Second is to discuss the judicial protection of the inheritance right of the family property of the Tang and Song society by the concrete actual case of the society on the basis of the investigation of the right of inheritance. The investigation of inheritance of family property shows that the inheritance rights of parentage in Tang and Song dynasties can still be well protected in most cases.
The following is to introduce the inheritance of the family property of the Tang and Song Yang Zi. First, it introduces the selection range of the breeding son. Secondly, it discusses the family in which there is no parent, generally adopt the foster son to take care of the parents, and then establish the family family. At this time, the inheritance of the breeding son is equal to the parents; in the family with both parents and breeding children, the foster son and the parents are equally divided into the family; and the Southern Song Dynasty, if the Yang Zi is the son, Close relatives stand up, only undertake the obligation to follow the portal, at this time it is called the fate of the family, at most only 1/3 of the family property, which does not belong to the object of the emphasis of this article; in the family with both the foster son and the son-in-law, the foster son and the son-in-law are equally divided into the family. On the basis of the inspection of the inheritance rights of the adoptive child, we can understand the protection of the right of the breeding child by the judicial operation at that time on the basis of the investigation of the inheritance rights of the breeding child. The following four aspects were investigated: family property inheritance dispute and successor's right of inheritance.
Finally, it is a summary of the characteristics and influence of the equal inheritance of the family property of the Tang and Song dynasties. The equal division of family property is the same as the premise and foundation of the patriarchal etiquette system. In the process of the equal division, it embodies the characteristics of maintaining the patriarchal ceremony and the protection of the young and weak. It should be said that "there is a limited equaliser", and it is not blind to the concept of all families in the mathematical concept. The absolute average. The average family property is divided by the inheritance of family property, and the sons and daughters continue to divide the family into the family property that has been handed down from their ancestors. The generation after generation has made Chinese society "rich and precious no three generation" Proverbs and true portrayal. The Chinese Society in ancient China is the main body, and the wealth of Chinese society can not be like Japan, Western Europe. As the country and the region carry on the large scale accumulation, the way of the average analysis of production has a certain influence on the historical process of Chinese society. Between the centripetal force produced by the consanguinity and the centrifugal force produced by the interests of property, the relationship between family and family is kept in the tendency and balance. Objectively speaking, it negatively encourages people's ideological inertia, and also obliterate our Chinese people's sense of innovation.
【学位授予单位】：河南大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D929;D923.5

【参考文献】