官法私契与西夏地权流转研究

The Official Law,Private Contract and the Transfer of Xi-xia's Land Right

土地买卖与租佃、典当是西夏社会地权流转的主要形式,其成交之前"问帐"文本中先问亲邻的事实,反映出地权流转的非排他性质,租傭草的赋税制度、地权流转的法律规定,也反映出国家具有终极土地所有权的特征,与其说流转的是土地本身与所有权,不如说是基于经济收益的"业"、"业权"。西夏法律着眼于维持地权流转契约的效力.而参与私契缔结的中人则利用自身权利与威望发挥着独特效力,二者共同作用,实现了地权流转在某种程度上宏观调控与微观操作的统一。

It was the main form of the land right＇ s transfer in Xi-xia, such as the trade and lease of land. In the process of transfer the land right, the parties should solicit the relative＇ s and the neighbour＇ s agreement before clinching a deal, and the regulation related on the transfer of land right in the official law also should be abided. It was not the land and the ownership, but the land＇s income, which was concern the transfer＇s con- tent. The states had the ultimate ownership of land, and the official law focused on maintaining the effectiveness of and ownership＇s transfer contract. The mediators played their unique effect through their own rights and prestige. The official law functioned with the private contract, and guaranteed the achievement of the transfer.