清朝蒙古例财产相关规定再考——以内蒙古喀喇沁地区财产继承纠纷案为例

Restudy on Regulations of Property in Qing Mongol Code——An Example of the Inheritance of Property Disputes Happened in the Kharchin

清朝蒙古游牧社会的财产继承问题一直以来被学者们所关注。对这一问题,法制史研究者与社会结构研究者之间持有不同的看法。前者认为,随着清朝统治的巩固,包括财产继承在内的蒙古习惯法,很大程度上受到中国内地法的影响。后者认为,当时的财产继承问题是取决于蒙古特有的社会结构,与清朝统治没有直接关系。两者都理所当然地认为蒙古社会的习惯法与内地的习惯法原本应该截然不同。但是我们无法从法律条文的相似程度断定同样的法律条文在不同社会中的解读也是同样的。因此,本文以实际财产纠纷案为例,阐述法律条文在蒙古地区和中国内地实际运用当中的不同解读,以及清朝蒙古例财产相关规定和当时的蒙古社会结构之间的关系等问题。

The inheritance of property in the Mongolian nomadic society has been a fascinating topic for many historians. However the academic views among the specialists who are doing research on the history of the legislation and the social structure are quite different. The former has considered that the customary law of Mongolia,including the inheritance ofproperty, was influenced by Chinese law under the consolidation of the Qing rule. The latter considers that the issues of the property inheritance at the time depended on Mongolian original social structure rather than the rule of the Qing. However, they both share the same idea that Mongolian customary law was totally different from Chinese law at first. Even though,we could not ensure that the interpretations of the same legal provisions in different societies were same in spite of the similarity between the customary laws of the Mongols and Chinese. In this paper,I will take the cases of the property dispute as the examples,discuss the differences of the practical applications of the legal provisions in Mongol areas and Chinese provinces,and,the relationships between the laws of the property inheritance and Mongolian social structure during the Qing dynasty.