摘要
活賣是明清時期盛行於中國民間的土地交易習慣，但這種交易關係的性質到底屬於典抑或屬於賣，則有不同的看法。如果單就清代法律文獻的記載以觀，清代官方確實一直注意著某種介於典與賣之間的活賣：這種田產買賣即使經過稅契過割等確認產權變動的程序，仍不完全排斥賣主日後可向買主行使找貼或回贖的請求。從清代官方對於活賣立法的相關討論可知，活賣係「賣而仍欲找贖」的田產交易，惟在法律效果上又籠統地「以典契論」一語帶過，可見清代官方亦承認此種田產交易係與絕賣有別，且與典不同的「活賣」。
對於活賣，清代初期並無清楚的法令予以規範，僅以稅契過割與否決定買賣是否杜絕。直至雍正八年（1730）始承認民間活賣田產的現象，轉而從契約文書記載區別絕賣與活賣，並明確規範找貼回贖的方式及任意告找告贖的法律效果。乾隆時期，則試圖以契約年代是否久遠作為準標，來限制雍正八年條例所承認的活賣範圍。在一系列的嘗試後，乾隆十八年（1753）終於以三十年內外決定田產買賣是活是絕。這個分別三十年內外的規定，究其本意，原僅適用於乾隆十八年以前買賣絕、活不明的情形，但由於《大清律例》的語義不夠周延，以致亦有官員將三十年解釋為回贖期間。惟大體上而言，如果田產買賣契約明確附註找贖條款，則不論該田產買賣年代久近，法律均認為找贖為合法。
Selling with recourse was a common practice in land deals during the Qing Dynasty in China. However, people have different points of views on this type of transaction. Is this a sort of pawn or selling? Qing legal literature indicated that Qing officials did pay close attention to this type of transaction in between pawn and selling: This type of transaction was made under indenture and proper assignment of property right. Yet, this full discharge of contractual obligation did not preclude the seller to request to redeem the sold property at a later date. Related discussion on the legislation of selling with recourse in the Qing Dynasty gave us the impression that selling with recourse was a form of land trade whereby “the selling entails subsequent reversion of property through redemption”. But the legal effect was just manifested grossly as “an indenture”. As such, we could see that Qing officials did recognize this type of land deal was different from selling without recourse and also different from pawn. This is selling with recourse.
In the early Qing Dynasty, there were no explicit legal rules governing selling with recourse. They tended to determine whether the selling was conditional by the payment of deed tax and registration for transferring property. Until the 8th year of Emperor Ong Zheng (1730), the Qing government began to recognize the practice of selling with recourse. They started to specify in the indenture whether the selling was made with or without recourse. For selling with recourse, how to exercise the right of redemption and the legal effect of illicit redemption were also specified in the indenture. During the time of Emperor Qian Long, the Qing government tended to use term of the indenture as a yardstick to regulate selling with recourse recognized by the bylaw of Qing. After series of attempts, the Qing government set the term of 30 years for the exercise of the right of redemption under selling with recourse in the 18th year of Emperor Qian Long (1753). If such right was not exercised within 30 years, the selling would turn without recourse. This new law was intended to be applicable to the land deal before 1753 whereby selling with or without resource was not clear cut. However, the wording of the “Qing Code” has not been explicit and detailed, to the effect that some officials interpreted the term of 30 years as the redemption period. By and large, if the provisions of redemption were explicitly stated in the indenture, Qing law recognized redemption was legal irrespective how long the land deal has been made.
關鍵詞
活賣、絕賣、典
selling with recourse (huo-mai), selling without recourse (jue-mai), pawn (dian)
