The Study Of Contract Culture In The Song Dynasty

In the Song Dynasty, economical high speed development, transaction activity frequent, each kind of contractual relationship is day by day complex, presents one kind of unprecedented prosperous aspect. Also day by day consummates including the folk custom contract rule along with it. But has formed and this time in the contract rule and under the transaction behavior mutual function, the social inseparable one kind of contract cultureThe author in regard to the contract and culture understanding, the cultural kind, the idea pattern and the behavior pattern. Because a person's idea also is manifests through his behavior. Then studies the culture, in the research culture forgives the value idea, the social norm, most important obtain from person's behavior.In view of this point, this article selected "The collection of virtuous and brightness verdicts by famous judges of ancient china" for the main research object, first was because took regarding the legal history research, " The collection of virtuous and brightness verdicts by famous judges of ancient china " to have Song Dynasty to the authenticity which the promise before the contract sentenced does not have. But next took to the contract culture research, " The collection of virtuous and brightness verdicts by famous judges of ancient china " center to concentrate has forgiven with the contract correlation massive cases, was the same time other verdict collection institutes does not have. Is once more because " The collection of virtuous and brightness verdicts by famous judges of ancient china " the verdict manufacture had achieved the quite high standard, take it as the research object, regarding understood the Southern Song Dynasty law system as well as the Southern Song Dynasty government official's trial way and the principle have a bigger help.In this article structure aspect, mainly divides into three parts, the first chapter embarks from the historical evidence of the Southern Song Dynasty's contract transaction carries on the analysis, grasps the Southern Song Dynasty contract culture each kind of characteristic. The author passes through to " The collection of virtuous and brightness verdicts by famous judges of ancient china " center to carry the verdict the summary and the analysis, thought the Southern Song Dynasty the contract culture plants has following six characteristics: (1) the official pursues not disputed; (2) the common social practice good disputed; (3) thick patriarchal clan standard characteristic; (4) the human sentiment is higher than the manning of the law trial principle; (5) red agreement and the contract without the promise of government choice - legal form and folk custom conflict; (6) Fakes are one of contract prosecution main reasons. Passes through regarding these six characteristics conformity analysis, the author proposed the Southern Song Dynasty contract culture is one kind is in the intense contradiction, has the strong clan law characteristic; Tends to in the folk the solid pursue reality daily economic life, seeks victory under situation which disputed, the ruler actually defends the three cardinal guides and the five constant virtues ethics,息讼rather artificial judges the principle, take pursues the natural justice human sentiment to the high boundary as the ultimate objective contract culture. But this contract culture institute especially is highlighting, is the contradiction.The second chapter author from the moral criterion, the legal system, the trial way, the populace behavior four aspects analyzed has formed these characteristics the reason. First in moral criterion aspect, between Southern Song Dynasty principle school of thought and the utility school of thought distinguishing of righteousness advantage, but these two kind of diametrically opposed thought is accepted byte different social stratum, also has initiated it in the moral stratification plane conflict, and has manifested in its contract culture. The principle school of thought thought pursues for the government officials not disputed has provided the rationale, and urged the Southern Song Dynasty official in the psychology (human sentiment) tossed in the trial the feudal reason principles governing relationships between people to the law of the land the meaning of the law above. But it to"righteousness" the excessively emphasis actually causes"righteousness" to become the mirage ideal, has lost the significance in the actual economic life. The utility school of thought thought conformed to at that time under the Southern Song Dynasty society beset with difficulties both at homeland abroad situation the society need to develop, was prosperous and the civil legal development positive role to at that time and later commodity economy. But in its thought too emphasized the utility the thought has actually destroyed the populace original basic morality in the certain degree, indirectly causes to fake the behavior massive appearances. But actually lacks the effective legislation in the Southern Song Dynasty facing the new situation which initiates because of the thought development, has caused in the economic life certain degree confusion.Next,in the legal system aspect, in the Southern Song Dynasty law the property punishment right guardian system of ownership and woman's civil right inertia, is extremely strict by and its the stipulation and complicated but certainly the imperfect relatives and neighbors law, has limited the Southern Song Dynasty contract transaction development in the different degree, is disadvantageous to the transaction security protection; Simultaneously has also caused in transaction many disputes, is one of reasons which the common social practice good disputed; But lacked in the property punishment right and the legal loophole also same creates has faked, the dusk depends and so on the behavior increases.Once more in government official's trial way, regardless of is its clam dawn the dissension rather person's accent sentences the union the trial way, orbits human sentiment is higher than the meaning of the law trial standard, also perhaps it too loose freedom decides after deliberation the power. All is unable for the contract transaction to provide effective and testable safeguard, illegal frequently taking the opportunity escapes punishment, the honest populace rather do not work out in the transaction the legal protection the contract without the government promise. Even more the worth noting is, the government officials place on trial the human sentiment standard which is picks are belong to the ruling class the three cardinal ethical relationships of the social order and the five constant virtues, obviously has been separated from populace's actual need, even has the enormous contradiction with it. This also unexplained in another aspect populace choose in the transaction the contract without the government promise reason.In the populace behavior, has analyzed the reason and the influence once more which the populace shed red agreement takes the contract without the promise of government as wells fakes. The author believed, the populace shed red agreement takes the contract without the promise of government is to country law one kind gets rid, no matter it is under the serious the tax of the contract pressure the behavior, or to country law safeguard disappointment, also or is to the common law the trust, all clear has manifested the populace and official in contract thought contradictory and the difference. In fakes the aspect, no matter is based on too emphasizes the utility righteousness advantage view, or is disadvantageous to the contract transaction legal rule, or the government authorities were bad regarding the contract copy clerk's management, fake the behavior to destroy should originally exist in the middle of the contract transaction the trust relations, and has created contract prosecution increasing. Meanwhile with officials not disputed ideal conflicted, increased in the Southern Song Dynasty contract culture contradictory factor.Finally has carried on the appraisal in the article to the Southern Song Dynasty contract culture regarding the realization contract essence goal aspect function.First, in the legal system aspect is take maintains the three cardinal guides and the five constant virtues ethics, the guarantee high quota the tax of contact the income as the goal. But such as the contract protection, stimulates the transaction the development, in among only is a secondary legislation value. Next, decides in judge on, its decision final goal or maintains based on its social order three cardinal guides and the five constant virtues ethics, but is not safeguards the contract the trust relations. Although in its decision time the good faith behavior also does not have the attack regarding the contract behavior in, but or appears regarding the contract trust protection lacks dynamics.Once more, because the populace and the ruler in the ultimate value contradiction which pursues. In about under the transaction legal system certainly imperfect situation appeared many has faked, the dusk depends and so on the behavior. These behaviors and judge do not unify to the contract security protection strength, relates regarding the contract transaction in trust said, its influence certainly is huge. Certainly, the populace good disputed regarding protects own contract right, maintains in the contract the trust relations to beagle to play the good role, but in judges "not disputed" in front of the objective, appears is that palely and weakly.Then we not rarely leave the conclusion, develops the Southern Song Dynasty contract culture in the contradiction, in time the realization contract safeguard trust relations essential goal function, lacks dynamics.