明清地权契约中“业”的表述与田骨田皮的“业权”属性

The Expression of Property Right in the Land Contract and the Nature of Property Right of Tiangu and Tianpi of the Ming and Qing Dynasties

明清时期田骨田皮分离是永佃关系或者说永佃制进一步发展的结果。就权利范畴与属性来说,田皮与使用权、经营权、永佃、永佃权存在交集,但实际并不相同。在土地"王有"观念支配下,田骨田皮分离无论是针对国家所有权作进一步分割,还是针对私人所有权作进一步分割,其终极所有权依然归属国家。受"王有"观念的影响,人们并不总是关注于土地的"所有""占有",而更多关注的是基于土地的"收益",是为了获得这一收益而力求享有的合法经营的权利——"业权",这在明清地权契约中有着更为明显的体现。业权固然是多重权利的组合,但却彰显着浓厚的传统文化观念,即强调对土地的经营与收益权利,而并非对土地的所有、占有权利,相对于现代所有权概念,"业权"更能够实现对田骨田皮权利范畴与属性的表达。

With Tianpi(Land-Skin)and Tiangu(Land-Bone)dichotomy,the further division of nation ownership and private ownership was realized.As for as its category,Tianpi overlapped with land use right,land management right,Yongdian(long-term contract)and Yongdian right,but these terms were practically different.Under the influence of national land ownership conception,the Tianpi(Land-Skin)and Tiangu(Land-Bone)dichotomy cannot cancel the ultimate land ownership belonging to the nation,whether their separation was meant to cut the national ownership or private ownership further into different entities.P eople tended to pay attention more to the benefits based a land or the management right which could provide them with legal income than to the ownership of the land.Such a conception was clearly manifested in the land contracts in the Ming and Qing Dynasties.The management right was a combination of multiple rights,highlighting both the traditional cultural values and the right to management and income of land,and it was not intended as a ownership right of land.Compared with the modern land right conception,the management right mentioned above is more suitable to the expression of the nature and category of Tianpi and Tiangu rights.