唐代借贷契约法律制度研究

发布时间：2018-11-23 20:35

【摘要】：本文主要就契约中应用较为普遍的借贷契约作为论述的切入点,以中国古代历史上经济发展的高峰时期——唐朝作为论述的历史背景。借贷契约并非开始发展于唐朝时期,但经济的发展促进了该时期契约的发展,所以借贷契约唐朝时期得到全面地发展。该时期的借贷契约除了对唐之前的发展有所继承,还根据本朝代的经济和社会状况进行了发展,并对其后的朝代在借贷契约的完善方面也有很大的借鉴意义。本文对借贷契约的论述区分了计息借贷和不计息借贷,唐朝法律对于不同种类的借贷采取了不同的保护原则,民间相对成熟的立契技术,为后世借贷行为提供了示范程式；本文还通过一些史料论述了唐朝较为详备的债权实现的保障措施,对于今天债权的实现依然具有借鉴意义,唐朝相对发达的借贷契约法律制度是中国古代社会优秀的民族文化传统,启示我们在中国法治建设的进程中要注重中国优秀的法律文化传统。虽然唐朝高度发达的借贷契约法律制度是商品经济发展的必然结果,但是又具有一定的历史局限性。为此,在社会主义法治建设的今天我们应该吸取其教训,完善现代民法债权体系,保障社会主义法治建设的顺利进行。正文分为六部分,第一部分为引言部分和五部分具体内容。具体内容如下：第一部分引言主要通过近年来主要学者对唐代借贷法律关系的研究,了解本题的研究背景及研究现状,从而为本文的展开设置一个理论背景。第二部分：唐朝借贷契约制度的历史渊源。纵观中国借贷契约的历史,考察唐朝借贷契约的产生、发展以及与以往朝代相比了解唐朝借贷的特色、贡献所在。第三部分：唐朝借贷契约相对发达的原因。主要从生活、经济、政治等方面论述了唐朝借贷契约产生的必然性。第四部分：唐朝借贷契约的种类。针对不同种类的借贷之债,国家采取不同的态度。唐朝相对成熟的立契技术,为当时借货关系的正常运行提供了保障,同时也为后世借贷契约提供了示范程式,是我国现行借贷之债成立要件的文化渊源。第五部分：唐朝借贷契约的保障措施。从掣夺家资、役身折酬、保人代偿、质的担保等几方面探讨唐代借贷契约的保障制度。唐朝借贷契约的保障措施有力地保障了债权人的利益,促进了债权的顺利实现。对于今天的债权保障仍有很多值得我们思考的地方。第六部分：对唐代借贷契约制度的反思。了解唐朝借贷契约制度的特色以及衰落的原因以及对当今的借鉴意义,在我国目前的法治建设进程中注重本民族的优秀文化,吸取其经验、教训,以完善我国目前的民法体系。
[Abstract]:This paper focuses on the general application of the loan contract in the contract as the starting point, taking the Tang Dynasty, the peak period of economic development in the ancient history of China, as the historical background. The loan contract did not begin to develop in the Tang Dynasty, but the economic development promoted the development of the contract in that period, so the loan contract developed in an all-round way during the Tang Dynasty. The loan contract of this period not only inherited the development before Tang Dynasty, but also developed according to the economic and social situation of this dynasty. This paper distinguishes between interest-bearing loan and non-interest-bearing loan. The law of Tang Dynasty adopted different protection principles for different kinds of lending. The relatively mature folk technology of establishing deed provides a model program for future generations' borrowing behavior. Through some historical data, this paper also discusses the safeguard measures for the realization of the creditor's rights in detail in the Tang Dynasty, which still has reference significance for the realization of the creditor's rights today. The relatively developed legal system of the loan contract in the Tang Dynasty is the outstanding national cultural tradition of the ancient Chinese society, which enlightens us to pay attention to the excellent legal cultural tradition in the process of the construction of the rule of law in China. Although the highly developed legal system of loan contract in Tang Dynasty is the inevitable result of the development of commodity economy, it also has some historical limitations. Therefore, in the construction of socialist rule of law today, we should learn from its lessons, perfect the creditor's rights system of modern civil law, and ensure the smooth progress of the construction of socialist rule of law. The text is divided into six parts, the first part is the introduction and five parts of the specific content. The specific contents are as follows: the first part of the introduction mainly through the main scholars in recent years to the Tang Dynasty loan legal relationship, understand the research background and research status, so as to set up a theoretical background for the development of this paper. The second part: the historical origin of the loan contract system in Tang Dynasty. Looking at the history of Chinese loan contract, this paper examines the emergence and development of the loan contract in Tang Dynasty, as well as understanding the characteristics and contribution of borrowing contract in Tang Dynasty compared with previous dynasties. The third part: the reason of the relatively developed loan contract in Tang Dynasty. Mainly from the life, economy, politics and other aspects of the Tang Dynasty to discuss the inevitability of lending contracts. The fourth part: the type of loan contract in Tang Dynasty. Countries adopt different attitudes towards different types of debt. The relatively mature technology of establishing deed in Tang Dynasty provided the guarantee for the normal operation of the borrowing relationship at that time, and also provided the demonstration program for the loan contract of later generations, which was the cultural origin of the constitutive requirements of the current debt in our country. The fifth part: Tang Dynasty loan contract safeguard measure. This paper probes into the guarantee system of the loan contract in Tang Dynasty from several aspects, such as taking the family capital by lot, commutation of service, compensation of the holder, guarantee of the quality and so on. The guarantee measures of the loan contract in Tang Dynasty protected the interests of creditors and promoted the smooth realization of creditor's rights. For today's creditor's rights protection still has a lot of worthy of our consideration. The sixth part: the reflection on the loan contract system of Tang Dynasty. In order to perfect the current civil law system of our country, we should understand the characteristics of the loan contract system of the Tang Dynasty, the reasons of its decline and the significance of reference to the present construction of the rule of law. We should pay attention to the excellent culture of our nation in the process of the construction of the rule of law and draw lessons from its experience and lessons.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923;D929

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