唐宋敦煌契约“恩赦”条款考论
发布时间：2019-08-05 14:00
【摘要】：敦煌契约中"恩赦"一词具有两重含义。在借贷契约中,"恩赦"是指无条件的全部免除债务的诏令,典当契约中的"恩赦"也可作此理解,而买卖与互易契约中的"恩赦"则是指国家颁布的具有立法性质的正式律令。无论"恩赦"的含义如何,"恩赦"条款都是对国家律法效力的排除和否定,以确保双方当事人所立契约的效力及顺利履行。但这样的约定只能依靠当事人自觉遵守才能履行,实际并无国家强制力,不能对抗国法。
[Abstract]:The word "amnesty" in Dunhuang contract has two meanings. In the loan contract, "amnesty" refers to the unconditional edict of debt cancellation, and the "amnesty" in the pawn contract can also be understood, while the "amnesty" in the contract of sale and exchange refers to the formal decree issued by the state with the nature of legislation. No matter what the meaning of "amnesty" is, the clause of "amnesty" is the exclusion and negation of the validity of the national law, in order to ensure the validity and smooth performance of the contract made by the parties. However, such an agreement can only be fulfilled by the parties concerned. In fact, there is no forced force of the state and can not confront the national law.
【作者单位】： 大连理工大学公共管理与法学学院;
【分类号】：D929
[Abstract]:The word "amnesty" in Dunhuang contract has two meanings. In the loan contract, "amnesty" refers to the unconditional edict of debt cancellation, and the "amnesty" in the pawn contract can also be understood, while the "amnesty" in the contract of sale and exchange refers to the formal decree issued by the state with the nature of legislation. No matter what the meaning of "amnesty" is, the clause of "amnesty" is the exclusion and negation of the validity of the national law, in order to ensure the validity and smooth performance of the contract made by the parties. However, such an agreement can only be fulfilled by the parties concerned. In fact, there is no forced force of the state and can not confront the national law.
【作者单位】： 大连理工大学公共管理与法学学院;
【分类号】：D929
【参考文献】
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