典卖与倚当:宋代法律的逻辑与生活原理——以会要体文献为中心

Mortgage and Yidang: Legal Logic and Life Principles of Song Dynasty

由于中国人关注的是土地与房屋的经营权益,而不单纯是权利界限的厘清,故田宅上有双重所有权。土地可典、可卖,田面权与田底权并存。不遵守自洽的物权逻辑体系,而注重权益的多重运用,是中国人的生活原理。两宋民间田宅典卖活动日益频繁,官府也因之创设、修改了诸多法令,以维护和引导正常的田宅典卖活动。在继承五代典卖、倚当相关法令的基础上,两宋发展和完善了担保、批退、议价、立契及过割等诸个环节的田宅典卖程序,意在构建诚信善良的交易秩序与生活秩序。这些法令的逻辑起点是,通过划分个体责任,以保证个体利益。诚信善良、"事父母"、"蓄妻子"的人伦追求,既是宋人的生活原理,也是支撑当时法律运作的逻辑基础。

Private property rights based on plots and houses is not only defined by statutes, but also by deeds and cus- toms, which is an apparent difference between ancient China and the West. An owner has two - tier proprietaries because Chinese pay much attention on the operating rights of real estate rather than the boundary of individual rights. Lands can be mortgage. Plot bottom rights and plot surface rights exist simultaneously. Life principles of Chinese are focusing on the mul- tiple use of rights. During the whole Song Dynasty, government created and rectified a large numbers of statutes and orders to protect and mandate mortgage activities which were becoming more and more frequently in daily life, Song Dynasty, based on Five Dynasties＂ statutes and orders concerning mortgage and Yidang, developed and perfected mortgage processes of real estate such as guarantee, rejection, negotiation, bargaining and conveyance. The legislative activities thereof were to structure bargain and life orders of good faith. The logical starting point of those statues and orders is to outline individual liabilities and to secure individual interests. The ethic pursuance of good faith and maintaining family relations is not only life principles of Song Dynasty, but also the logical basis of the contemporary laws.