唐末宋初敦煌异姓男养子契探析——兼与国家法的比较研究

Analysis of Dunhuang Adoption Contracts with Sons of Different Surnames During the Late Tang and Early Song Period——Also a Comparative Study with National Law

敦煌异姓男养子契承载了唐末宋初敦煌地区的民间收养规则。养子契的订立需要五亲商议,并以养子防老为主要目的。收养关系中养子负有孝养父母的义务,养父母则将家产交由养子继承。异姓男养子契规则与唐宋国家法在收养条件和财产继承上存在较为明显的冲突。民间社会基于收养异姓男的现实需要,通过立契来结信并遏制诉讼,强化道德约束,在寻求与国家法的调适中形成了相对独立的民间法规则。

Dunhuang adoption contracts with sons of different surnames carry the folk adoption rules in Dunhuang area during the late Tang and early Song Dynasty.The establishment of the adoption contracts needed the discussion of all family members,and the main purpose was relying on sons to take care of the aged.In the adoptive relationship,the adopted son had the obligation to filially support his parents,and the adoptive parents'property was inherited by the son.There were obvious conflicts between the rules of adoption contracts with sons of different surnames and the national law of Tang and Song dynasties in terms of adoption conditions and property inheritance.Based on the practical need of adopting sons with different surnames,civil society had formed relatively independent rules of civil law in the process of seeking adjustment with national law by signing contracts to build trust and curb litigation and strengthening the moral constraints.