基于永佃权的清代国家法与习惯法之比较

永佃是民间自发产生的经济制度,佃农因支付押租或因垦荒改良土地而获得永佃权。永佃权提高了佃农地位,但地主与佃农的权利关系并不明确而带有模糊性,争诉频发。起先国家法禁止永佃,但永佃权是市场规律在起作用,法律禁而不止,所以国家法予以默认。相对于国家法,习惯法的规定更详细,但习惯法比较分散,效力也弱于国家法。清代永佃法律并不统一,无法使永佃权从自发制度转化为规范制度,削弱了永佃权的功能。

Comparison on National Law and Customary Law in Qing Dynasty Based on Permanent Tenancy

Permanent tenancy was the folk spontaneous economic system .The tenant obtained it from ei-ther paying deposits or land improvement .Permanent tenancy raised the position of the tenant ,but the relationship of landlords and tenants were fuzzy which led to frequent litigation .Initially ,the state law prohibited permanent tenancy ,but permanent tenancy was related with and ruled by the market and the law could not prohibit it as a result .Compared with the national law ,customary law had more detailed terms ,but its effectiveness was weaker than the state law .The permanent tenancy law was not unified in Qing Dynasty which accordingly weakened the permanent tenancy function .