清末民初奉天地区不动产租借习惯法论——兼及与东北其他两省份的比较

On customary law of real estate rental in Fengtian in late Qing Dynasty- As well as comparison with the other two Northeast provinces

租借对象主要是土地、房屋等不动产。在国家典卖制度的规范下,依托东北地区特有的风土人情,形成了调整租、典、卖三者发生叠加矛盾时的"租不拦当、当不拦卖"习惯;在他人土地上建造房屋获得优先居住权,期满房屋所有权归土地所有人,建筑人不可随意拆除的"借地不拆屋"习惯;在借用的土地上修建房屋,须向出借方缴纳"地皮租"是奉天省独有的习惯;土地所有者与垦户订立荒帖,其效力不仅及于地主与垦户,还及于中人的垦荒习惯等。在司法裁判时因其可以作为裁判依据而具有法律效力。这些习惯对今天东北地区房屋租借合同的签订有一定影响。

The main rental targets are land, buildings and other real estate. Under the specification of national pawning and selling system, relying on the unique customs of the northeastern region, several customs have been formed to adjust the conflict of renting, pawning and selling, such as ＂renting don＇t stop pawning, pawning don＇t stop selling＂; ＂tenant does not housebreak＂ that the builder cannot freely demolish the houses though getting priority of residency if building houses on the land of others, which are owned by the landowners when expiring; the borrower is required to pay a ＂land rent＂ if building houses on the rental land, which is unique custom in Fengtian Province; the validity of the contract between land owners and users is not only effective to the landowners and the users, but also to the middlemen. In the administration of justice it has the force of law because it can serve as a basis for the referee. These habits have an impact on the Northeast today signed a loan contract houses.