试论汉代的民间借贷习俗与官方秩序——兼论汉代民间借贷中的“契约精神”

Discussion on the Private Lending Custom and the Official Order in the Han Dynasty:Also on the“Contractual Spirit”in the Private Lending in the Han Dynasty

汉代民间存在比较发达的借贷行为,主要可分为民间的互助型借贷和商业借贷两类。在具体的做法上,汉代的民间借贷有信用借贷和抵押借贷两种方式,其中商业借贷以抵押借贷为主。借贷过程中要签订契约,由此在长期实践中逐步发展出一定的规范契约格式。这些民间借贷的习俗被官方秩序认可并吸纳后,以法律法规的形式反馈民间。这个过程中,既有对民间习俗的稳固与强化,同时也不可避免地与民间习俗产生了矛盾与冲突。汉代的民间借贷习俗中,体现出汉代社会重视契约、重视公平公正的观念,这与现代"契约精神"相类似,是当时社会进步的表现。但同时也存在着重"情"甚于重"法"的倾向。

Developed lending behavior existed in the Han dynasty,which can be divided into two categories:civil mutual loan and commercial loan.In practice,private lending in the Han dynasty happened in two ways:credit loans and mortgage loans,and commercial loan was dominated by mortgage.Both sides were required to sign a contract in the process of borrowing,and in the long-term practice they gradually developed a certain standard contract format.These private lending customs were recognized and absorbed by the official order,and then fed back to the folk in the form of laws and regulations.In this process,there were consolidation and strengthening to the private customs,but also inevitably,there were contradictions and conflicts.Private lending customs in the Han dynasty embodied the concept of valuing contract as well as fairness and justice in the society of the Han dynasty,which was similar to modern"contractual spirit",and reflected the progress of the society at that time.But at the same time,there was a tendency of valuing"sentiment"rather than"law".