中国古代土地“活卖”关系之考释——兼论《中华人民共和国民法典》对“典权”制度的取舍

Interpretation to the Buy-back Relation of Land Purchase and Sale in Ancient China ——And Discussing Acceptance or Rejection of the Civil Code of China to the Pawn-right System

在中国传统的农业社会,土地交易频繁,且以"活卖"为其特色。活卖的习俗源于北齐时期的"贴卖",其特点是出卖人暂时让渡土地所有权而保留日后回赎的权利。它是中国古代民间社会里一种常见的土地交易方式,与中国古代漫长的小农经济以及人们与之相适应的财富观念有极大的关系。

In agricultural society of ancient China, land transactions occurred frequently, which was characterized by the land seller's buy-back right. The convention of land purchase and sale by unfixed period originated from Tie-mai in Bei-qi Dynasty period, which had the notable feature of the seller's reserving the right to buy back the land at a later unfixed time. It was a common kind of land transaction among the people in ancient China. It had a great deal to do with China's long history of small-scale peasant economy and people's sense of property of that age.