明清时期田土买卖中的找价回赎纠纷及其解决  

Additional Payment and Redemption Disputes in the Land Trade of the Ming and Qing Dynasties

作　　者：春杨[1] 

机构地区：[1]中南财经政法大学

出　　处：《法学研究》2011年第3期175-193,共19页Chinese Journal of Law

摘　　要：明清时期民间田土买卖盛行找价回赎之风,围绕着找价遭到拒绝或多次找价,在新旧业主之间引发了大量的纠纷乃至诉讼。依据徽州契约和州县官员办案手记等资料,可以看到田土找赎习俗和纠纷形成的原因,明清朝廷、地方官员及民间百姓针对找赎习俗的不同态度及州县官员解决找赎纠纷的依据和方式。虽然民间找赎习俗与国家律例之间存在着矛盾和冲突,但明清朝廷因时制宜,不断调整有关律例,地方官员在执法中灵活变通,充分考虑当地民情,这使得田土交易秩序得以稳定。The practices of additional payment and redemption in the land trade prevailed in the Ming and Qing dynasties, that is, the sellers of land, due to the rising of land price after sale, asked the assignees to pay additional money or return the land. There were several reasons for such practices. One of the key factors was the constantly rising of land price and the contradiction between less land and more people. Another reason was the land register system of the Ming dy- nasty which made the discrepancy between the time of bargaining and the time of transfer. The third reason was the vague distinction between ＂sale for ever＂ and ＂sale with redemptive right＂. Besides, the value orientation of mutual benefits pursued by both buyers and sellers made such practices very popular. Therefore, a large number of disputes around land trade occurred since the mid--term of the Ming dynasty. The bases to resolve such land disputes were diversified. The central governments of the Ming and Qing dynasties enacted series of laws and regulations to stabilize the land trade accord- ing to different situations respectively. However, the laws and regulations had certain limits and therefore the local officials played a very flexible role in resolving these disputes. The notices, in- junctions and judgments issued or rendered by local officials had become the important basis to re- solve the land disputes. Besides, the contracts to increase price or redeem land were also impor- tant basis. National decrees, local injunctions and folk practices were in the state of conflicts. In order to avoid conflicts, national laws had to coordinate with folk practices. In order to stabilize the land trade order, to ease the social conflicts and to maintain the social order, the central governments of the Ming and Qing dynasties had kept adjusting the related laws or decrees, and local officials made efforts to take flexible measures. These experiences are very meaningful to us.

关 键 词：找价回赎 徽州契约 明清律例 田土买卖 

分 类 号：D929[政治法律—法学] D923