汉代买卖之债研究

发布时间：2019-04-19 07:25

【摘要】：汉代是我国封建社会的重要阶段,其政治法律制度逐步完善,并对后世影响深远。以往学术界对汉代法制的研究,多侧重于“刑法”和“行政法”方面,对“民法”规范的研究虽有力作,但基本上限于某一侧面。本文以法律史学的视角,运用现代法学的相关理论和方法,借鉴相关学科的研究理论与成果,尝试对汉代买卖之债进行较为深入和系统的研究。一时代之学术研究,必须借助于新发现、新材料。取用此材料,以研求老问题,乃为做学问之通路。笔者本着古为今用、实事求是的严谨态度,精心搜集历年在甘肃、敦煌等地出土的汉简及其它地方的摩崖、碑记、买地券、考古资料、陶文和一般文献中的契约录文,力争廓清汉代买卖契约发展之本来面貌。汉代真正承担债务、履行债务的当事人包括国家、社会组织、家(户)和个人。但就家庭与个人而言,往往紧密结合。汉代个人是家庭(户)甚或家族的一分子。他们虽然可以与外界发生经济交往,但是与现代民法中的民事主体不同的是:汉代个人无“私财”,与外界之间的债务一般是以家庭的财产作为偿还。而不像现代民法中,民事主体与外界之间债务首先是以个人财产来偿还,只有在特殊情况下,个人财产不足偿还债务时才以家庭的财产来偿还。汉代划分民事行为能力的主要依据是立户,只有具备户主的身份才可以自己的名义参与经济交往,享有权利,履行义务。一个人即使已经成年,如果不是户主,也没有资格独立地参与重大经济活动。本文按照标的性质的不同,详细探讨了目前我们所能见到的各种买卖契约文书。汉代买卖契约种类已经比较齐全,既有买卖土地房屋的不动产买卖契约,也有动产买卖契约。对此笔者既有宏观的制度分析,也有具体个案考察,并对买卖契约的程式内容进行了归纳。汉代关于买卖之债的制度已有债的履行、担保以及国家的监督和管理制度。汉代买卖之债的消灭形式主要有清偿和抵消二种。汉代买卖之债的担保形式也己经多样化,其常见的担保方式为信用担保,此外还有瑕疵担保和追夺担保。其中信用担保又分为赊买契约、赊卖契约和俸禄担保。赊买和赊卖契约以中人为保证人,俸禄担保则是以国家权威机关的声誉作为买卖之债履行的担保。这反映了汉代高度重视对债主经济利益的保障。汉代买卖债法的突出特点体现在汉代官府对债的积极调控方面。从静态来看,汉代官府对买卖契约的管理主要体现在对商品的价格规定上。从动态来看,在债的发生、履行过程中,官府一直积极干预,以确保债主的经济利益。汉代买卖债法在中国古代债法史上占有重要地位。它上承先秦,下启晋唐,处于承前启后的重要历史阶段。汉代买卖债法与先秦的相比,具有债的内容规范化、债的标的多样化、债的担保多元化、债的当事人广泛化。由买卖之债的当事人、买卖契约制度等方面都可以看出,晋唐买卖债法就是对汉代的进一步发展和完善。笔者把汉代买卖债法的社会作用归结为三点:首先,体现商品交换关系的买卖契约打破了身份界限,在一定程度上促进了人与人之间的平等关系的发展;其次,妇女可作为契约订立的当事人,在一定程度上解放了社会生产力;最后,国家对买卖契约的积极干预维护了社会稳定,促进了商品经济的健康发展。法律不是凭空产生的。它反映了一个民族物质文明之发展,记载着一个民族制度文明之演变,刻录下一个民族精神文明之积淀。中国“古代民法”虽然不能完全适应近代生活的需要,但它们是在中国社会长期发展中积淀形成的,承载着我们民族的价值理念与秩序观念。“忘记历史意味着背叛”。余论记述了笔者写本篇论文的一点感受,希望能与广大法律同仁共勉。
[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,"
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D929;D923

【参考文献】