习俗、政府和律法博弈下的永佃土地流转——以清至民国时期福建省为例

The Circulation of the Permanent-Tenancy Fields under the Game of Custom, Government and Law——Taking Fujian Province as an example during the Qing Dynasty to the Republic of China

对于民间自行产生的永佃土地流转,政府的态度从完全禁止到立法规范。法律禁止的永佃转租因在民间适应性强仍广泛存在;法律许可的永佃土地典当、继承、买卖等行为在流转呈现自身特色的同时,能极大扩充流转规模。政府还限制过典卖回赎和找价行为,也没有抵过习俗的强大。在习俗、政府和律法的相互博弈中,政府和立法者都曾妥协以求更贴合民俗,但仍到处受挫。原因就在于法律法规没有在充分尊重习俗的基础上满足民众利益最大化。

The circulation of the Permanent-Tenancy Fields self-generated among the people.The gov-emment's attitude towards it had changed from complete prohibition to legislation.Sublease prohibited by law was still prevalent in folk.Pawn,inheritance and sale permitted by law had mature operational mechanism.While their circulation presented their own characteristics,they could greatly expanded the scale of circulation.The government also limited redemption and additional payment,but it had not blocked the power of custom.Under the game of custom,government and law,the government and legislators had compromised in order to conform more to folklore.But they failed to stop the development of the custom.The reason is that laws and de-crees did not satisfy the people's interests maximization on the basis of fully respecting customs.