合与分:清代乡村土地交易中的典与活卖

The Similarities and Differences:The Pawn and Flexible Selling with Redemption in the Trades of Lands in the Villages in the Qing Dynasty

学界关于清代土地交易中典与活卖的认识存在着相反的观点,但少有明确的论证分析。从观念演变和实际交易中的产权转移表现可以发现,清代的典与活卖呈现出既“合”又“分”的形态,即在普通百姓日常认知中,典与活卖并无什么不同,但在具体的典与活卖交易过程中,对契税、推收过割和完粮采取不同的实践方式,体现了其谋求利益的选择逻辑,这一逻辑亦形塑了典与活卖的合流。而对于清政府而言,为了保证赋税、减少诉讼,其多次立法澄清二者的区别,尤其在找价回赎问题方面,试图消除因典与活卖的模糊性所带来的弊病,且直接影响了民间交易实践对典与活卖二者内涵认知的调整,但效果甚微。清末典契税的重新征收加剧了这种混乱,并延续至民国,进而影响到民法中的物权问题讨论,而当下学者的认知困境与民国学人又极其相似。

There are opposite opinions about pawn and flexible selling with redemption in the trades of lands in the academic circles, but there are few clear demonstration and analysis. From the evolution of ideas and the transfer of property rights in actual transactions, it can be found that the pawn and flexible selling with redemption in the Qing Dynasty were obviously similar and different. That is to say, there was no difference between pawn and flexible selling with redemption in ordinary people’s daily cognition and transaction. However, in the specific transaction process of pawn and flexible selling, different practical methods were adopted for paying deed tax, tui shou guo ge and paying land tax, which reflected the operation logic of seeking interests and also shaped the confluence of them. For the Qing government and officials, in order to ensure tax payment and reduce litigation, the laws have been made for many times to clarify the differences between them for eliminating the disadvantages caused by the ambiguity of pawn and flexible selling with redemption, especially in terms of additional price and redemption. And it directly affect the adjustment of folk trade practice to the connotation cognition of pawn and flexible selling, but the effect was very little. This confusion was aggravated by the re-levy of deed tax in the late Qing Dynasty, which continued to be discussed in the Republic of China on the issue of property rights in modern civil law. And the cognitive dilemma of current scholars is similar to that of scholars in the Republic of China.