地权冲突与秩序重建——清代“湖团”案研究

Land Ownership Conflicts and Order Reconstruction: A Case study of "Lake Group"in Qing Dynasty

清咸丰同治年间苏北铜沛原居民与鲁西南移民之间的湖田权属之争,实质为排他性民间地权观念与国家产权法理的冲突。在无法回避此矛盾的背景下,被钦定调解此案的曾国藩决定重建权威秩序,做出按是否安分守法这种国家标准对土客重新排队划界的仲裁:"不分土民客民,但分孰良孰莠"。实践中,曾国藩以保障各方财产权和生存权为前提,既强化国家法理的至上地位,又尽可能顺应民间"私情"与尊重"共有的习惯",通过确认合法产权与重新分配权利,成功地化解了国家利益和民间利益之间的矛盾,实现了多方共赢。

During the regimes of Tongzhi and Xianfeng in Qing Dynasty,the dispute of the ownership of lake field between the indigenous inhabitants at Tongpei in northern Jiangsu and the immigrants from southwest Shandong could be traced to the root of a conflict between the exclusive concept of private land ownership and the legal principle of state property rights.In the context of such unavoidable contradiction,Zeng Kuo-fan,who was appointed by the Emperor to mediate the case,decided to rebuild the order of authority and to make the arbitration of demarcation according to the national standard of being law-abiding： ＂Regardless of native or immigrant,judging only by good or bad＂.In practice,Zeng took the protection of property rights and right to exist of each side as a precondition,strengthened the supremacy of the national legal status and conformed to the local private customs and common habit as far as possible,successfully resolved the contradiction between national interests and civil interests by confirming the legal property rights and redistribution rights,and finally achieved a win-win situation.