“民有私约如律令”考

Study on “Private Contracts as Laws and Decrees”

传统法学理论认为中国古代法律是“诸法合体、民刑不分、以刑为主”,进而否认中国古代民法的存在。从“民有私约如律令”这一合同习语出发,广罗相关历史资料和学术研究资料,系统考察了“民有私约如律令”的语词渊源和作为其主要载体的中国古代“地券”的概念内涵、外延、法律属性及其与土地买卖契约的关系后发现:在中国古代,民间私契在当事人之间的效力等同于官府律令的效力之理念,由来已久;民间长期存在着与官府律令相对应的,以意思自治为主要内容的民事习惯法;中国古代民法对民事法律关系的调整有其独到之处,即通过对公权力的界定来给出私权活动的范围,以正律仅仅作为一种民事活动底线的最基本的要求,而在实定性的私法体系外设想和构筑民事法律秩序。

Traditional legal theory takes the view of Chinese ancient laws as ＂all laws were merged, civil law and criminal law were not separated , and priority was given to criminal law＂, and then negates the existence of Chinese ancient civil law. Starting from the contractual phrase of ＂private contracts as laws and decrees＂, the author extensively enumerates relevant historical materials and academic materials, and discovers, after systematical studies of the phraseological source of ＂private contracts as laws and decrees＂ and the connotation, extension, legal attribute of the concept of Chinese ancient ＂bills for purchasing land＂, the main medium of the phrase, as well as its relation with the land sale contract, that in ancient China, there was a long - standing idea that the effect of private contracts between the parties was equal to that of the official laws and decrees ; the civil customary law the main content of which is autonomy of will had been in existence corresponding to the official laws and decrees ; Chinese ancient civil law was unique in the regulation of civil legal relations, i.e. , providing the scope of activities concerning private rights through defining public power while taking valid law merely as the most essential requirement of the bottom line of civil activities, and conceiving and constructing the substantial civil legal order outside the private legal system.