摘要
本文从"官有公法,下凭私契为据"与"民有私约如律令"这些合同习语出发,广泛收集相关历史资料和学术研究资料,系统考察了"官有公法,下凭私契为据"与"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、法律属性及其与土地买卖契约的关系。笔者发现: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。
Starting from such idioms as 'Authorities have public laws and civilians have private deeds'and 'Civilians regard private deeds as law'this paper makes systematical researches on these origins of above-mentioned idioms, the concept and the legal attribute of 'deed for land' as its main carrier and relationship between land sale agreement and deed for land in ancient China. The author discovers that the idea that 'the validity of a private agreement between parties is equivalent to the validity of law'existed in ancient China. Corresponding to the law of authorities the civil customary law with the main content of party autonomy existed over a long period of time. The civil law in ancient China possessed distinctive qualities in regulating civil legal relationship, that is, the working sphere of private rights was given through the definition of public power, the official law was regarded as one of the most fundamental requirements of civil activities and the civil legal order was tentatively planned and constructed out of actual private law system.
