宋代女性财产继承权的实现程度——基于出嫁女讼案的历史考察

Women's Inheritance in the Song Dynasty of China —Based on Historical Case Study of Married Women

自唐代以来,女性已明文享有财产继承权。迄于宋代,立法更显深入。但是,具体的司法实践并没有促成财产继承权的真正实现。就宋代出嫁女继承"本家"财产讼案来看,第一,财产数额一旦巨大,皇权就必然干预其中,继承权遂趋于"有限";第二,新出台的遗嘱制度,只能为女性提供不堪打击的"弱保护";第三,即便是出嫁女的母氏嫁资,也常常"被脱出"继承权限;第四,"出嫁女"身份的法律认判,更是改变继承权限的重大因素。所有这些历史变象皆显示,宋代立法与司法实践之间差距明显,国家法制的不健全、社会认同感的缺失和女性自身的不自觉等,都是女性实现财产继承权的障碍。

Since the Tang dynasty, the female had definitely had the right of inheritance under the law. In Song dynasty, the legislation was more deeply but the specific judicial practice had not led to a real implementation of inheritance. From the case of the property of married women＇s inheritance in Song dynasty, we can see that, first of all, once the property amount is large, the imperial power is bound to interfere and the inheritance tend to be ＂limited＂; second, the system of the new testament for women is only a ＂weak protection＂; third, even the married female＇s mother＇s trousseau were often ＂be out＂ of inheriting permissions; fourth, the married women＇s legal identity is an important factor that could change the inheritance rights. According to the obvious gap between the legislative and judicial practice, in the Song dynasty, national legal system is not sound and lack of social identity as well as women themselves unconsciously, are the obstacles to hinder the implementation of married women＇s inheritance.