交易费用视角下南宋“亲邻权”的演变及调适

Analysis of “Relatives and Neighbors Priority” and Its Legal Adjustment in Southern Song Based on Transaction Costs

唐宋时期田宅交易"亲邻优先"从习惯法上升为成文法,反映了中国传统社会具有深厚的文化嵌入经济、影响法律的特质。"亲邻优先权"使田宅交易呈现出人格化交易的特点,大大增加了田宅交易的诉讼风险和违约风险,也加剧了熟人社会的关系张力,从而产生很高的交易费用,耗散社会效率。南宋时期土地交易活动日益增长,因"亲邻优先权"而产生的纠纷不断。面对日益增长的土地交易和人们对交易非人格化的要求,南宋法律及其相应的司法实践逐渐加强了对人格化交易的限定,使亲邻权的权力主体限制在较小的群体范围,并且规定了亲邻权纠纷的诉讼时效。这些法律调适,是降低交易费用的制度安排,它减少了不动产交易风险,也使司法实践更加有法可依、有制可循,对增进社会效率具有重要意义。

The law of the ＂Relatives and Neighbors Priority＂ in the transactions of farmland and residence was elevated from a customary law to a written Law in the Tang and Song Dynasties. This reflected the traditional social characteristic that the economic system was embedded into the cultural system. Transactions of farmland and residence exhibited the features of personification trade because of the ＂Relatives and Neighbors Priority＂. The litigation risk and default risk were significantly increased, and relationship tensions were aggravated in the acquaintanceship society. Consequently, transactions resulted in high transaction costs and low social efficiency. In the Southern Song Dynasty, because of the ＂Relatives and Neighbors Priority＂, frequent land trade exacerbated the problem. With the growth of demand for land trade and nonpersonification trade, some non-personification trade laws were into practice. We can see the number of people with priority rights was limited, and that the limitation in law was also reduced. These legal adjustments reduced transaction costs and made judicatory practice legitimate and institutional. On the whole, it raised social efficiency.