| As Chinese endemic civil legal system, right of dien has its own historical inevitability during itsgeneration, development and matures. In Chinese history, system of land equalization had been performedsince BeiWei，which distributed land according to the population. Land belongs to the state principle. Inorder to ensure that every year there was field can be granted, the land was prohibited for free sale naturally.National policy contrary to the objective existence of the land circulation need, right of dien arised at thehistoric moment. It is documented in the southern and northern dynasties period had appeared the earlyform of right of dien. According to this deal form, nominally retained the “ownership” of the land owner,actually avoided the punishment of the law, as a result, the dienholder won the real right for usufruct, whilethe pawnor found a way to gain enough money. Because of the family fortune lived under communistsystem, in dien industry, a pawnor would not be scold unfilial for “selling patrimony”, and would reducetheir mental pressure, so right of dien had gained wide development space. After the middle of tang dynasty,with the disintegration of the average-land system, the strengthening of private ideas, land circulation hadbecome a fact gradually, the country was unable to control "tie dian","zhi sell", then gradually acquiesced,indulged, until admitted the folk "tie dian","zhi sell" and taxed it. This paper attempts to comb relevantprovisions about dien from historical document, conclude real subject and object scope in dien relationshipin tang dynasty, and summarize the rights and obligations of the both sides, to clarify the establishedstandard procedural demands, restore the standard sample state in the history of tang dynasty, to providereference of dien’s development for the following song dynasty.There was not prohibit the sale of land in Song dynasty, people can trade land freely. Along with thedevelopment of commodity economy and further deepening of private ideas, right of dien achievedsignificant development.“The Song Dynasty Criminal System” add “Dian Mai Zhi Dang Lun Jing Wu Ye"department to regulate the folk DianMai behavior. For further contrast of the change of Tang and Songdynasty, this paper takes the relevant legal rules in tang dynasty as the reference, points out the subject andobjects scope in dien relationship in two Song dynasty and the rights and obligations of the parties, makesclear the procedural requirements that the government admitted. From the perspective of the history of the law, this paper observes the changes of dien between Tangand Song dynasty in social background. The change of dien firstly embodies in written law.“The SongDynasty Criminal System” governed the subject, object, contract, redemption, prescription, also ruled theprohibitive provisions from the opposite, as well as legal responsibilities of the violation of the provisions.Song dynasty law also made specific provisions of the rights and obligations of the mediator. The Songdynasty had developed contract industry, which reflected in dien was the official version of contract paper,the implementation of the wide application of printing had provided the technical support. Song dynastylaw inherited the priority of relatives and neighbors from Tang dynasty law, developed certain limits, alsoprovided the proprietors more interests guarantee, as well as the relevant provisions about legal punishmentof fraud behavior, so that the priority of relatives and neighbors could be more personal. Considering thesituation was different, in Song dynasty law redemption period continuously been shorted, these allreflected the development of commodity economy lead to the speeding up of the land circulation. In short,compared to the Tang dynasty, legal provisions of the dien in Song dynasty was detailed andcomprehensive. In addition to the remarkable changes of statutes outside, in judicial practice, the number ofdien dispute in the Northern Song dynasty was larger than Tang, but smaller than the Southern Songdynasty. Dien cases also presented the complicated trend, some of those were collected in “Ming Gong ShuPan Qing Ming Ji”. Throughout the collection of judicial examples in this book, the cause of the troublemight be the rich coveting the poor’s property, or something wrong with the priority of relatives andneighbors, or faking contract that no evidence to prove, or the mediator’s deception. Whatever number orcomplex degree, the cases of Song dynasty are far beyond the standard quality cases in Tang dynasty. AfterTang and Song, the right of dien had its basic forming, which affected yuan, Ming, qing dynasty deeply.Between Tang and Song Dynasty, The evolution of dien has its own deep historical reason. Form themiddle of Tang Dynasty to the Northern Song Dynasty, Tenancy system had replaced the system of landequalization, the most fundamental economic reasons of change in dien was the change of land system.Inaddition to the change of land system, The development of commodity economy and tax system reformalso provided a strong impetus for the development of dien. At the same time, with the idea of private wastoo deeply rooted in everyone’s mind，Man of noble character was keen on wealth and take have the road，These ideas were all approval led by society. The traditional concepts of justice and benefit changes had provided the ideological foundation for change in dien.Period between Tang and Song dynasty had got significant development and change, in feudal societyof our country, this kind of development and change was the transition of dien, which reflected in civil lawfield. Between the Tang and Song dynasty, the right of dien was gradually differentiated fromTieMai,DianZhi and TieDian, concretized in statute, simplified procedures, perfected and finalized thedesign in the process of practice, and influenced later legislation profoundly. However, from the overalllook, as a folk that being admitted by government finally, dien had been partly admitted since BeiQi,in theearly form of “TieMai”. The contribution of the ruler of the Tang dynasty was the continually-acceptationto the folk customs, while the contribution of the ruler of the Song dynasty was clearly regulated the dienbehavior, and made it systematism. Therefore, According to the development of dien,it is not “revolution“but “change” during the period between Tang and Song dynasty. |
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