摘要
分家析产是传统中国财产传递的主要模式,与西方的遗产继承是不相同的两种制度。清末民初引进西方法律时,外来的遗产继承与内生的分家析产发生交会,并有冲突与融合。本文以民初的大理院为研究对象,进行分家析产的司法审判实务的考察,以还原由大理院判例所构建的分家析产规则。自成文法而论,中国在此时期开始自传统的分家析产向近代的遗产继承演变,1931年的国民政府民法典完全实行基于个人主义的继承制度,根植于同居共财家庭的分家析产制度默默地退出国家法。但民初大理院仅仅将分家析产的法律与习惯体系化,并适度地采纳西方的法律精神,传统的分家析产制度并没有被近代的遗产继承制度所取代,反而因此延续了中国固有习惯及传统法律的生命力。
Family division and property distribution is the main pattern of transmission of family property from generation to generation in traditional China which is different from the inheritance succession system in the west.When western laws were introduced into China during the Late Qing Dynasty and the early Republic of China,the foreign inheritance system started to blend with the locally practices of family division and property distribution,and have the conflicts and interfusion between the two.This paper focuses on the Grand Council of Justice of the early Republic of China,and makes investigations into judicial judgment practices about family division and property distribution,in order to restore the family division and property distribution rules constructed by the cases of the Grand Council of Justice.In the matter of written laws,China was starting witnessing the transition from traditional family division and property distribution practices to the modern inheritance succession system.The civil code of the Republic of China(1931)was absolutely enforcing an inheritance system based on individualism,leaving the family division and property distribution system,tooted in the family system of co-residence and common property,fading out silently from national laws.But the Grand Council of Justice of the early Republic of China,however,simply systematized laws and practices of the institution of household division and then moderately adopted the legal spirit originating from the western world.The traditional family division and property distribution system was not replaced by the modern inheritance succession system.Instead,the Grand Council of Justice was actually an attempt to continue the vitality of local practices and traditional laws of China.
出处
《私法》
2010年第1期201-241,共41页
Private Law Review
关键词
分家析产
遗产继承
大理院
同居共财
诸子均分原则
household division and property distribution
inheritance succession
the Grand Council of Justice(Da Li Yuan)
co-residence and common property
the equalmale-division principle of family property
