传统社会家庭成员户籍与财产法律变迁——从“分异令”到“别籍异财法”的历史考察

From“Fen Yi Ling”to“Bie Ji Yi Cai Law”:Domicile and Property Relations between the Traditional Chinese Family Members of the Legal Changes

商鞅变法,行"分异令"等法令,强制成年子弟与其父"别籍异财"。汉及其以后的王朝,法律逐渐以儒家伦理为依归,其重要伦理"别籍异财"之禁,亦渐次成为国家法律:汉朝除禁止鳏、寡、老、疾等家庭分异外,对百姓"别籍异财"或合户,立法指导原则基本上是听民自便;曹魏改律,废止强制父子异财的"异子之科";西晋立法,要求子弟与耄耋父祖同居;南北朝都立有"别籍异财法",禁止父祖在子孙"别籍异财";唐修《疏议》,"别籍异财法"臻于完备。

In Shang Yang＇s Reform ,the King of Qin promulgated ＂Fen Yi Ling＂ and other laws to force parents break up their home and let their adult son be indepennt. The Han dynasty and its beyond, Confucian ethics gradually became the base of their laws and an important ethic-the ban of ＂Bie Ji Yi Cai ＂also became law , Although the West Han Dynasty followed the Qin Dynasty, but it had some restrictions on separation , esepcially the widowed mother and her son. So did the Eastern Han. Cao Wei reformed laws,＂Yi Zi Zhi Ke＂was abolished. The West Jin enforced adult children to live together with their oldest old father and grandfather. The East Jin ,the Southern and the Northern Dynasties drew up＂Bie Ji Yi Cai Law＂to prevent separation when father and grangfather were still living . The＂Bie Ji Yi Cai Law＂had been complete when the Tang Dynasty compiled the Tan Lv Su Yi.