秦汉至唐宋时期遗嘱制度的演化

The Evolution of the Testamentary System from the Qin and Han to the Tang and Song Dynasties

中国古代从遗令到遗嘱有一个发展演变过程,早期的遗令含多方面内容,是亡者于生前对死后各种事务的安排及意愿的表达,涵盖甚广,外力和国家律令并不干预。隋唐以来,随着门阀制度的衰弱,同居共财大家族向单个独立小家庭经济体的过渡,家财的继承越来越现实而重要,遗令渐变为家长专门分配遗产的手段,这类专门赋予经济内容的遗令即遗嘱,由唐代遗嘱法所界定。唐宋遗嘱及其样文的流行,反映出遗嘱在家产继承中的重要地位。遗嘱继承制是父权家长制在家产继承上的体现,遗嘱继承高于法定继承。宋代遗嘱,须官给公凭才合法,完全纳入国家管控。南宋实行遗嘱税,实是征收遗嘱继承遗产税,这种制度性的完善,使中国遗嘱继承制进入一个新的发展阶段。

In ancient China, there was a process of development by which dying injunctions (遗命yímìng) became wills. In the early period, the injunctions had multifaceted content; they were the deceased’s expression, while living, of wishes and arrangements for after his death. Outside forces and national laws or regulations had no part in them. From the Sui and Tang dynasties on, with the weakening of the system of hereditary aristocracy, big families with shared wealth living under one roof gradually evolved into smaller ones and the issue of inheritance of family property became more immediate and important. Last injunctions thus became the means by which the head of the family divided the inheritance. Last injunctions with economic content were in effect wills, as defined by the Testamentary Law of the Tang dynasty. The popularity of wills and sample wills in the Tang and Song dynasties reflects the importance of the will in the inheritance of family property. The system of inheritance by will reflects the patriarchal system of family property inheritance; and inheritance by will had a higher status than statutory succession. In the Song dynasty, wills were completely under state control, and a will become valid only after it had been approved by the official authorities. The Southern Song levied a tax on wills (actually an inheritance tax); this institutional refinement marks a new stage in the development of China’s system of inheritance.