明清中国土地典交易新论——概念的梳理与交易方式的辨析

A New Study on the Land Dian Transaction in Ming and Qing Dynasties:An Analysis of the Concepts and the Transaction Methods

典是传统中国独有的土地交易形式。本文运用产权理论,对“一田二主”实态下的典进行重新定义,以期更清晰地反映典的实际内涵,并对典和当、活卖及胎借等土地交易形式之异同进行辨析。“一田二主”实态下的土地典交易,标的物为田面(田面主为实际耕种者)时,与田面、田底合一的情况相同,转让的是土地的使用权益、收获权益及部分处置权益;标的物为田面(田面主佃与他人耕种)或田底时,转让的则是收小租或大租的权益,不涉及土地使用权益。当实际上是抵押借贷,与典有本质区别。在标的物为田面时,活卖和典几无区别,这是二者多被等同的根本原因。胎借源于福建,在传入台湾地区后衍生出三种形式,即普通胎借、对佃胎借和起耕胎借。土地交易方式的不断更新和演变,土地不断流转,土地资源持续优化配置,或可为论证中国传统社会的长期延续提供新的思路或视角。

Dian is a traditional Chinese unique form of land transaction. Since modern times, with the introduction of real right and property right theory, Chinese scholars began to apply these theories to explain or reshape the dian. In addition, because the fact that the land under the system of “One Field Two Owners” can be traded separately between the land surface and the land bottom was neglected, the original meaning of dian has lost. Therefore, with relatively clear property right theory and combining with the fact of “One Field Two Owners” to elaborate the dian, its actual connotation will be more clearly reflected. Under the form of “One Field Two Owners”, when the subject matter of land dian transaction is the land surface and its owner is the actual cultivater, which is the same as the case of the combination of the land surface and the land bottom, then what has been transferred is the land use right, harvest right and partially disposal right;but when the subject matter is the land surface(cultivated by the landlord and others) or the land bottom, then what has been transferred is the rights of small or large rent, which does not involve the right of land use. Dian and dang, and flexible selling are two sets of concepts often confused by the academic circles. Actually, dang means mortgage loans, which is essentially different from dian. When the subject matter is the land surface, flexible selling and dian are almost the same, and the object of their transaction is mainly the land surface, which is the root cause of the scholars equating the two concepts. Taijie is originated from Fujian, and when it was introduced to the Taiwan Residents region, it generated three forms, namely, ordinary taijie, Duidian taijie, and Qigeng taijie. Scholars would often overgeneralize the three forms according to one of them. However, the continuous updating and evolution of land transaction methods, the continuous circulation of land, and the continuous optimization and allocation of land resources, probably will provide new ideas or perspectives for the demonstration of the long-term continuation of traditional Chinese society.