变革与转型:宋代“别籍异财”法的时代特色、成因及意义论析

发布时间：2018-08-28 20:10

【摘要】：宋代"别籍异财"法鲜活的时代特色为:由唐及宋初的妇女奁产不在兄弟财产析分之列,发展到北宋仁宗时的非因父祖财产及因官自置财产,不在论分之限;由唐及宋初的父母服阕后的合用析户,发展到北宋中前期的父母葬后即可辄析家产;由唐及宋初的父母主持不脱离户籍的"生分",发展到南宋时期的父母在世,兄弟之间的完全"别籍异财";由唐代对"别籍异财"者的严禁与刑罚,发展到宋代对"别籍异财"者的逐渐认同与宽容。宋代"别籍异财"法特色的生成不仅与家庭个体的财产权利意识高涨、已婚妇女的推动有关,更与家产争讼有关;其嬗变历程无疑为我们深刻认识宋代法律的近世化转型提供了一种崭新的视角,亦昭示了法律须随社会变动而变动的法律哲理。
[Abstract]:The characteristics of the new law of the Song Dynasty are as follows: from the Tang Dynasty and the early Song Dynasty, the women's dowry property was not included in the analysis of the brothers' property, but the non-patriarchal property of the Northern Song Dynasty Ren Zong and the property bought by the officials themselves were not limited by a point of view; From the parents of the Tang and the early Song dynasties to the parents' burials in the early Northern Song Dynasty, the parents of the Tang and the early Song dynasties were able to readily analyze their family property; the parents of the Tang and the early Song dynasties presided over the "birth division", which was not divorced from the household register, and developed into the surviving parents of the Southern Song Dynasty. From the prohibition and punishment of the Tang Dynasty to the gradual recognition and tolerance of the people in the Song Dynasty. The formation of the characteristics of the law in Song Dynasty is not only related to the upsurge of the sense of property rights of the individual family, the promotion of married women, but also related to the family property dispute. Its evolution course undoubtedly provides a new angle of view for us to deeply understand the modern transformation of the Song Dynasty law, and also shows the legal philosophy that the law must change with the change of the society.
【作者单位】：淮北师范大学政法学院;
【基金】：2010年国家社科基金一般项目“宋代司法传统中的理性与经验研究”(10BFX020)
【分类号】：D929

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