Ancient family property

The basic characteristics of property rights relations in ancient China —— the form of family ownership with individuals and small families as the basic unit of property rights and "* * * you" as the essential content.

First, the two brothers are the "* * * owners" of the property.

There are two main ways for brothers to divide property. One is multivariate analysis, that is, when parents are alive, sons gradually divide wealth with marriage, but each son's share is slightly less than his due average share, which will be divided again and finally distinguished after parents are old or die; Then there is the one-time inheritance law. Parents are not separated when they are alive, and they are separated once after their parents die. Either way, the analysis is the property belonging to this family-family property, handed down by ancestors; Everyone in each generation and family only enjoys these properties at a certain time. Once there is a next generation, it means that there is a new heir, and the story of the father's family will repeat itself ... The property belonging to individual family members is not included in the analysis, such as "private houses analyze first and then continue to buy property" in the process of many analyses, and the dowry property brought by ④ is also "inseparable". ⑤ In the concept of the parties, which are family-owned and which are individual-owned, ⑤ the boundaries are very clear.

This kind of "* * * you" under family ownership is a unique form of ownership in ancient China, which is not exactly the same as the "* * * you * * you" in western property right theory. The theory of property rights in modern western countries originated from ancient Roman law and Germanic law. In the original ancient society, Germanic property law was typical, because it was based on natural economy, unlike ancient Roman law, which was based on commodity economy. The basic feature of Germanic property law is that personal property ownership is not simple, and it usually appears in the form of "* * * with * * *"; Moreover, there is an "identity relationship" between "* * *" and "* * *", that is, the relationship of rights and obligations arising from blood or marriage, so it is manifested in the form of ownership of "* * * and * * *" by members of kinship groups (families or families). As far as this basic feature is concerned, the situation in China is very similar to that in Germanic countries, but there is a key difference: in the form of "* * * and * * *", each individual doesn't know his share, so he can't take his share and live independently without the relationship between "* * and * * *"; In ancient China, under hundred schools of thought's average analysis method of property, each brother could calculate his share (proportion) according to the principle of average, divide his wealth, live in different places and set up another account.

Family ownership is different from family ownership and is the "* * *" of family members. The ownership of family property can be decomposed into every man of the same generation in the family through the process of family separation; Family property is "public" and completely owned by the family as the basic property unit. Family members only enjoy the income of family property, which has nothing to do with the ownership of family property; Family property is passed down from generation to generation as a whole, and there is no specific intergenerational transmission process. The property of the family is strictly separated from the property of each small family, and the family only plays a supervisory role in the inheritance and sale of the property of the small family. During the Tang and Song Dynasties, there was a custom of "giving up neighbors". The Law on the Sale of Tian Zhai Dian stipulated that "ask the family first, don't buy, ask the neighbors" when trading. Its neighbors are the southeast, followed by the northwest. If the neighbor didn't buy it, ask the neighbor. Neighbors don't sell, but they are the owners of foreign money. " In fact, most of the neighbors in the countryside and the neighbors on the land belong to the "house system". When disposing of family assets, the government should also give priority to close relatives. In these specific circumstances, the family forces involved in the transfer process of small family property is not the confusion between family ownership and family ownership, but based on the fact and concept that each family's property was handed down by ancestors and belonged to the same ancestral family several years ago; Selling now, especially selling, is inseparable from this circle. You should continue to walk around in the small family analyzed from that ancestor's family.

The so-called family ownership is owned by an individual and a small family, which is different from the family ownership of a large family living together. Living with a wealthy family deprives children and grandchildren of their potential personal ownership, which is similar to family property and completely belongs to the extended family. It is worth noting that the rich families living together are trying their best to maintain the survival state of pure natural economy and prevent the entry of commodity economy factors. Pet-name ruby because the income and consumption in the natural economy are based on "family", it is not easy to distinguish everyone's situation; Commodity economy takes "individual" as the unit of calculation. 10) Income and contribution can be clearly seen from each other, so it is easy to compare, which leads to the idea of economy and centrifugal factors. This also shows that the basic production and living units and the ownership (basic property rights) units of the means of production in the natural economy era should all be individual small families, and this cohabitation relationship with financial families has been artificially expanded, which is out of harmony with the production and living environment at that time.

Brothers' equal property ownership is what we are talking about today. At that time, there were no concepts such as real right and ownership. The law only stipulates that "farmland and property should be divided equally between brothers"; "cohabitation should be divided into three categories: those who are unequal, those who plan to invade, those who take stolen goods, and those who are degraded": ⑾ In the specific separation process, it is reflected in the absolute average requirement. On average, in the enfeoffment documents in the late Tang Dynasty and early Song Dynasty, it was called "Pavilion (Stop) Division", "Lianting (Stop)" or "Pavilion (Stop) Branch". After listing the divided property, there are often words like this: "The right piece is divided, and it is allowed to fold the cabinet and hook it repeatedly. Don't sing with human feelings, but live with life. " ⑿ Use the old method of casting a hook or drawing lots to show that there is no human feelings. It is difficult to achieve the average distribution of completely farmland houses, and it is often compensated by adjusting some other properties. In the separation document of Zhang He and Zhang H Xing in the Tang Dynasty, it was said that after the two brothers separated, "the fate became more and more unequal, and more importantly, they took two poplars from the rising ground" and gave them to their brothers; [13] Yuan Cai of the Southern Song Dynasty told his descendants that if there is any property that should not be shared equally by all people, but should belong to a few of them (mainly the property obtained by individual family members as officials or businessmen, that is, the above-mentioned "continued production"), it should also be clearly written at the end of the book, or a separate "missing section" should be written as an appendix for everyone to know. In the history of China, the reason for the formation of "* * * ownership" and the equal ownership of family property by brothers of the same generation (that is, the formation of "the average analysis property of various schools of thought") is not easy to explain. From the specific process, it is the disintegration of the enfeoffment system and Shang Yang's reform in the Spring and Autumn Period.

Under the feudal system of Shang and Zhou dynasties, title was a comprehensive carrier of power and property. Because power cannot be divided (as far as property law is concerned, it is the "purpose" of * * * that limits the division of * * * things), so we can only adopt the way of overall inheritance. Inherited by one of the sons (eldest son or youngest son), the other sons have no share. ⒂ Shu Ren, a lower-middle class civilian, can't get a title, but only property can be passed on to future generations. Simple property can be divided at will, and it is not necessary to adopt the overall inheritance method of one person's inheritance; However, Shu Ren, a civilian at that time, was still in the network of patriarchal clan system. Although some small families exist, they do not have independence, and the premise of forming a small family inheritance model is not mature. During the Spring and Autumn Period, with the relaxation of patriarchal clan system, the independence of individual small families became greater and greater; After entering the Warring States period, the trend of family miniaturization became more obvious. The "home" mentioned by Mencius and Li Kui is already a three-generation small family with husband and wife as the core, and it is no longer a big family where father and son live together. This should be accompanied by the habit of separating father and son.

When Shang Yang first arrived in Qin, Qin people were still in the stage of "father and son living together"; In order to strengthen the hegemony of Qin, it is necessary to increase the number of agricultural labor and soldiers. Shang Yang forcibly separated these big families by administrative means, clearly stipulated that "two or more men are equal in talent" and advocated individual small families. In several changes before and after the promulgation of the law, Shang Yang did not make special provisions on the division of family property, but forced separation meant the establishment of individual small families, which already included the contents and specific methods of family property division. On the one hand, when a son is separated from his parents and opens another account, it will inevitably take away a fortune, and several sons will take away several fortune one after another, which is equivalent to changing the fortune from one father's house to several sons' houses, and transferring it from the whole to the analysis and inheritance, which objectively forms the property analysis methods of various schools. Secondly, every son has to work, live, pay taxes and serve after opening an account, and the burden is the same. Plus, the blood relationship is the same, so the property separated from the father's family should be roughly the same, which adds the "average" factor to the analysis of hundred schools of thought, forming the so-called average analysis of hundred schools of thought. After the unification of Qin Dynasty, Shang Yang's method was adopted by successive dynasties and developed into a complete separation system.

In this way, Western Europe was "diverted" from its source: the aristocratic lords system in Western Europe, which was similar to the enfeoffment system, continued until the 14th and 15th centuries. Feudal lords set power and property in one, which could not be separated from generation to generation, so they chose one of the philosophers (commonly known as "appointing the eldest son") to inherit the whole; After the modern industrialized society, the facts and concepts of private property have gradually become clear, and with the emphasis on personal interests and will, property has become the property of parents alone, and parents can completely deal with it according to their own wishes. Every generation is like this, so they continue to follow the system of inheritance by the eldest son alone. In Shang and Zhou Dynasties, China only carried out the system of one-person inheritance for the eldest son (or youngest son). Later, with the disintegration of the enfeoffment system, property and power were no longer linked, and family property had been divided equally by all factions. However, people from all walks of life still attach great importance to consanguinity and are afraid that the portal behind them will die out. They all have an instinctive desire to pass on the family portal. The so-called separation is actually a process of "carrying on the family line"-carrying on the family line through the inheritance of family property. This requires that family property is always linked to the family portal. Family property is not a simple property, and the ownership of each individual is incomplete, so it is in the form of family ownership.

Second, parents are only managers of property.

Mr. Ren Jingtian believes that the relevant laws and regulations in the Tang and Song Dynasties gave parents the absolute right to dispose of property, and parents could "exclude people who participated in the property, or decide the amount of division at will, or dispose of the property freely"; Mr. Dai also said that parents can "dispose of their property at will, or divide it from their children and grandchildren according to law"; Mr. Shiga Xiusan's views are somewhat compromised. He believes that real estate is not only a "family" property and a "big family property" mixed by father and son, but also a "father's property". When separating, the father can't make a decision alone, but the father is the "power subject" of the property ... As far as the actual situation in the Tang and Song Dynasties is concerned, the property power of parents has been exaggerated to varying degrees. In fact, under the average analysis method of various schools, parents are not only the only owners of real estate, but also the first owners before their sons. As parents, only at the beginning of separation, without a son, is the owner of the property. Once they have a son, they become the people who manage the property for their son. In other words, in a normal family with a son, parents are just property managers.

This first involves the perspective of examining the problem-whether to focus on legal provisions or life facts. [2 1] The works on inheritance of family property in the Tang and Song Dynasties were mainly written by jurists and legal historians. From Japanese scholars in the early years to some scholars in China now, they mainly consider the problem from the legal provisions. In ancient China, law and ceremony were mixed, and the law mainly restricted them from the perspective of prevention. If it crosses this bottom line, it will be sanctioned. Rites are advocated from the front and lead to the heights, and the mountains seem to have no end; Paying equal attention to etiquette and law can enable most people to regulate their daily behavior between legal constraints and etiquette advocacy. This standardized daily behavior is a fact of life between law and etiquette. Therefore, we should pay attention to the concrete facts in our life in order to get close to the historical reality. This premise has been clarified, and two concepts need to be clarified in the specific investigation.

First, parents' right to manage and control family property. Parents should manage the affairs of the whole family and lead family members to work together. Income and expenditure are based on the family, and everything is arranged by parents. This requires specific management of family property, including fields, houses, food and clothing and other means of production and living. Over time, it is easy to think that parents are the suppliers of food and clothing for family members, and family members' dependence on their families has become their dependence on their parents. However, the daily family livelihood arrangement only embodies the management right, which is different from the ownership reflected in the process of separation. Parents only manage property and cannot dispose of it at will. The right of management is internal, and it is manifested as the right to control family property when it is external. Parents can buy, sell and lease land and houses on behalf of the family. When concluding a contract, "the owner must be the owner of the house and the owner of the money". If the mother is a parent's family, when the son is in charge, the mother "must discuss through the curtain before making a transaction" and must be handled by the parents. [22] Under the equal land system, parents, as the head of the family, also negotiate with the government about the grant of land, the payment of taxes and the release of domestic maids ... But on this occasion, parents do these things not as individuals, but as family representatives; Only on behalf of the family to exercise property ownership, not to exercise their own ownership. Sometimes parents are not the only dominators. For example, in the Tang Dynasty, when it was stipulated that domestic handmaiden was dismissed, a document had to be signed by "parents, under the eldest son" before it could be submitted to the court for approval. [23] Some documents are even the signatures of the third generation of grandchildren.

The second is that parents have the right to know family members. Parents are the head of the family, [24] all family members, including the wife, are his family members and family members. According to the standard of "filial piety" in traditional ethics, all family members must obey their parents unconditionally; Specific to the ownership of family property, there are similar requirements. At the beginning of the popularity of individual small families in the pre-Qin period, the book Book of Rites said that "parents are here, and they dare not privately own their wealth" and "Kundi does not distinguish between righteousness and wealth"; [25] Later, it was said that Sima Guang directly quoted the original words of the Book of Rites, Volume IV of Wengong Jia Fan, and quoted many examples from the Han Dynasty to Beiqi to prove the truth of "children's selfless wealth"; Zhu also said in the trial of two separation lawsuits at that time, "According to etiquette, anyone who is a son does not keep private wealth, and the law also prohibits different wealth." With parents above, the son of man is not exclusive to himself. How dare he hoard wealth and goods and take the countryside for himself? "[26] In fact, this is just an advocacy, a moral sermon and constraint, and people can't really do it. One of the reasons why some scholars exaggerate parents' property rights is to equate ethical preaching with life facts and confuse the right of fatwa with ownership. This point is most obvious in Mr. Nakata's exposition: "The immediate family members have great fatwa power over their children and grandchildren, so his financial management power is naturally confused with this fatwa power, and the difference between the two is probably unclear." [27] In fact, as long as we look at the separation, on the one hand, people talk about filial piety and friendship in documents, and at the same time share property equally, especially in the case of father-son disputes, we will understand that in the minds of ancient people, what to say and do is very clear. Filial piety is based on kinship and ethical education, which belongs to the concept and cannot be understood as the ownership of family property.

This is mainly in daily production and life. In the case of separation of property ownership, although parents' father or grandfather separate their children from their grandchildren and arrange the ownership of property, they cannot arrange it according to their own wishes, but must do it according to customs and laws. Most importantly, some biological children and grandchildren can't give their property to others by will (see below for details), nor can they give one of their favorite children and grandchildren and deprive other children and grandchildren of their inheritance rights; It must be distributed equally among all children and grandchildren, and no one can be partial. Parents can only decide the time of separation, but not entirely by their parents, because according to the wishes of their parents and grandparents, they don't want their children and grandchildren to be separated while they are alive, and they are willing to be separated behind them. In fact, many families have separated many times, and they don't completely listen to their parents.

Many laws and regulations related to separation seem to have the intention of restricting parents' rights. In the Tang and Song Dynasties, there were very detailed regulations on the analysis of family property: "Anyone who should divide the land should be divided between brothers. The wealth earned by the husband's family is unlimited. If a brother dies, the son will inherit the father's share; When all the brothers died, all the scholars shared equally. Those who don't get married don't charge money, and those who have a house are reduced by half. Widows and concubines are divided if they have no men, and they are divided if their husbands and brothers are dead. " [28] With this complete regulation, the time of separation and separation can still be discussed. If it is a separation, it must be implemented in accordance with this regulation, otherwise it is illegal; In other words, parents have no right to change this set of established and statutory methods. [29] Parents can be emotionally partial to one of their children and grandchildren, but they must be treated equally when they are separated. [30] Because there is a regulation that "cohabitation should be divided into unequal people, plan to occupy and reduce the third class", [3 1] Even if parents give more, it is also considered "occupation" and illegal.

In order to ensure fairness and equality, there is also a set of supervision means in the process of separation. In addition to the above-mentioned on-site lottery, it is also necessary to conclude documents. During the Tang and Song Dynasties, there was an officially published "format" of enfeoffment documents, which was a general rule. [32] When separating, you only need to fill in the relevant specific contents according to the "format", and the space for each party to join the personal will is limited. When concluding the document, the elders of the family will preside over it, and the uncles of the descendants will be witnesses. For example, among those who saw Dong Jiaying's separation documents in Tang Zhaozong nine years after the Dunhuang excavation, there was an "Auntie Stone God" sign; There is also evidence that the monk Chongen punished the relic, including "Cousin Yan" and so on. Brother Zhang's book is signed by "Cousin Guo Rirong". [33] My cousin is my uncle's son, and my cousin is my uncle's grandson, representing my uncle. Both elders supervise at the same time, first of all, parents, because it is parents who are most likely to create inequality and favor a child. Different from the usual contract for the sale of land and houses, the separation document does not go straight to the subject, but must first talk about a large section of "family history", including the difficult process of establishing a family business from ancestors to fathers; This is mainly for the education of consanguinity and family, and also for the son Sun Mingbai. What we are analyzing now is the property handed down by our ancestors, which we inherited from our parents and grandparents, but it is not the personal property of our parents and grandparents.

In the Tang and Song Dynasties, there were also some cases where parents made an exception and disposed of property according to their own wishes. There are two main situations in these examples. One is that parents are charitable, and Otawa's brother, son and nephew live together. Because there is no separation, parents have more power to dispose of property. This kind of big family is rare and cannot be extended to the usual situation. And most of them are doing good deeds, not for themselves or for someone at home. If the economic interests of family members are damaged, it is still fair for all members to suffer. In another case, when parents separate, they designate some property that parents are not allowed to divide and dispose of. In the Tang Dynasty, when Liu Hongji was old, he "ordered 15 slaves from all schools and five hectares of fertile land" and gave the rest of his property to others. [34] Zhao Ding of the Song Dynasty also said to his family in Family Training that "after he followed me for one hundred years, all my assets, except fields and corridors, should be divided according to the laws of each family". [35] They just deducted some property. As for the part that is allowed to be divided, it should be evenly distributed according to the "laws of various philosophers", and there should be no distinction between thickness and thickness. In addition, some female parents believed in Buddhism and Taoism in their later years and exhausted all their assets to build temples. They donated mainly the old-age land left for themselves when their children and grandchildren were separated. Although these old-age land should be shared equally by their children and grandchildren after their death, it is only a small part of the original family property after all. These are exceptions, different from the usual ownership.

Third, family property is the property connected with the family portal.

In families without biological sons, daughters and children, there are another set of supplementary ways stipulated by customs and laws when inheriting family property, such as daughter adoption, will inheritance and heir inheritance. These methods, like the average analysis methods of various schools, also make the rights and obligations of heirs consistent and continue the family portal with the help of the process of family property inheritance. In these supplementary ways, the characteristics of family property are more directly reflected: it is not ordinary simple property, but connected with the family portal.

After Shang Yang's political reform, with the "rich hadron scoring", the phenomenon of "poor hadron getting redundant" appeared. [38] Compared with previous dynasties, the Yuan Dynasty recorded the most son-in-law, which can be clearly observed in Tongzhi Tiaoge and Yuan Zhang Dian. "The Family Order" in Volume III of the General Program said: "At present, there are many husbands' houses, and they cannot marry women because they are poor, so it is redundant. Although it is not an ancient ceremony, it is difficult to change. These families have the right to order and follow the customs. " The government can't change it because it has become a "custom". Xu, a guide to official marriage in the Yuan Dynasty, said that there were three main ways to recruit a son-in-law in the Yuan Dynasty: [39] One was to stay in the woman's house for life, with the woman's surname and the children's surname, which was called a pension husband or a shed husband; Second, don't change your surname, bring your wife and children back to their original places after supporting your parents, leaving a son to inherit the woman's portal. This is called returning to the family or giving up the family; Third, the husband and wife still live in their parents' home after marriage, and then decide where to settle down according to actual needs after the woman's parents die. This is called giving up her husband. This was the custom at that time and was also recognized by the government. The law of the Yuan Dynasty stipulates: "To recruit a son-in-law, you must specify the age and years of retirement or becoming a monk, as well as the words such as wedding ceremony, marriage affinity and matchmaker." And ending the redundant document; [40] When an orphan girl inherits the inheritance, it is also stipulated that "when she grows up, she will recruit a son-in-law and become a policeman after her family" [4 1] ........................................................................................................, of course, this classification did not begin in the Yuan Dynasty, but it often appeared in Song Yao Hui and Qingming Ji, and it was already the case in the Song Dynasty at the latest.

Wills-ways of inheritance

Families without children, daughters, husbands and wives often use wills when inheriting property. The way of testament appeared earlier, and the related records increased obviously in Tang and Song Dynasties. [47] Testamentary succession is not just to give the inheritance to someone, but to require the testator, like the heir, to bear the corresponding obligations while inheriting the property, and to provide for the testator's pension, carry on the family line and establish a portal. Therefore, wills are often combined with the way of heirs, that is, heirs are produced by wills; From the perspective of rights and obligations, the testator is indeed equivalent to an adopted son. Based on this idea and fact, the eighth volume of Qingming Collection classifies "will" into the category of "inheritance".

As mentioned above, the choice range of heirs is roughly the choice range of testators. One is the nearest grandnephew in collateral blood relationship, and the other is the grandnephew, that is, the son of a sister or daughter. Try to use close relatives, rather than people with unrelated surnames, [48] to make the blood relationship closer and ensure the smooth continuation of the family portal after the heir or will. When a family is short of heirs, parents have the right to decide whether to make a will, and the parents decide who to give it to, but they must act within the scope of customs and laws. The first premise is that "there are heirs who are unwilling to make a will." [49] When you have your own children and grandchildren, you can't deprive them of their inheritance rights without reason and transfer their property to others. Also, no matter who is in power, you must choose between these two directions, and you can't choose people with handmaiden status and their descendants within these ranges. At this time, we have seen the restrictions on parents' power. On the surface, what is limited is the choice range of heirs. In fact, these restrictions are parents' right to dispose of property if the family refuses. Even if there are no biological children and grandchildren, parents have the dual identity of the manager and owner of the property, and cannot handle it completely according to their own wishes.

The procedure of will is similar to the usual separation. After selecting the testator or heir in the traditional way, the will document was drafted in a ready-made format (including the Tang Dynasty will format in Dunhuang documents), and the patriarch and close relatives were invited to attend a ceremony and sign it to show their approval. The reason why it is necessary to gain people's recognition is because in the ancient concept, property is not personal, but family; Since it is a family, it was once a family a few years ago, and the assets of the family should be passed down within the family; If a family will is given to a daughter, it is often given to her husband, nephew and grandson, which is equivalent to depriving the children of her close relatives of their potential inheritance rights. Therefore, the attitude of the clan is very important. Only after the elders or brothers of the clan sign and agree as witnesses can the will be fulfilled smoothly.

In the traditional family separation system, [50] the testamentary succession model can best explain the family ownership of family property. As we all know, the principle of private ownership of property is the same nature of testamentary succession, and wills in different periods and regions have different characteristics. The testamentary succession system, which was first recorded in the Law of Twelve Bronze Tables in ancient Rome, mainly originated from the worship of the dead. The testamentary succession system in modern European countries is developed and perfected to protect private property rights. However, this is not always the case. It is said that the inheritance will of the Germans initially only reflected a religious belief [5 1] ... Although the inheritance mode in the Tang and Song Dynasties was also related to the concept of private property, it was also closely related to the traditional family concept, which was the "ultimate concern" for the family and the family portal. The meaning of the previous layer is obvious. This paper only analyzes the relationship between testamentary succession and traditional family values.

Compared with the eldest son inheritance system in Western Europe, Japan and South Korea, China's traditional average analysis method of family property has outstanding equality spirit and strong family concept, but it limits parents' power to deal with family property according to their own wishes and requires parents' personal wishes to be subordinate to family interests. The property behind it must be shared equally by scholars according to custom. Only under special circumstances that there is no biological son can the ownership of the property be arranged by will. Will is only an auxiliary way of traditional inheritance, and it is still restricted by family and custom norms. This habit and system are formed because the inheritance of family property is only a means to ensure the spread of family portal.

Under the eldest son inheritance system in western Europe, all the property of a family is inherited by one person. The family that needs to make a will is not necessarily childless, but chooses a favorite son to inherit, so as to ensure the longevity of family property (enterprise), and its focus is on family property (enterprise) rather than family members and families. The situation in Japan is similar to that in Western Europe. According to scholars who study Japanese family history, [52] is different from China, whose core is blood relationship or even lineal blood relationship. Japanese families focus on "family business", and blood relationship is secondary; In the Japanese concept, the continuation of family is not mainly the continuation of blood relationship but the inheritance of family business. Japanese family property includes fields and real estate, and more importantly, the skills of production, life and survival. As long as the family property can be passed down, it doesn't matter whether the descendants are their own direct descendants. Adopted sons, mother-in-law and sons who have the ability to inherit family property will use it, and the focus is also on family property (enterprise) rather than family and family. In China, family property is evenly distributed among sons, with the aim of enabling each son to obtain the material basis for supporting his family, focusing on the survival of the family, especially the inheritance of the family portal. In this way, the inheritance of family property is not an individual behavior between father and son, but a family behavior between father and son; It is not only a way to inherit and transfer family property, but also a means to maintain blood relationship and ensure family continuity. For families with biological sons, the inheritance of the family portal has been completed when the property is divided, and there is no need to dispose of the property by means of wills or the like. This has formed the basic characteristics that testamentary succession is mainly used for households without inheritance, and it is often integrated with inheritance.

Explaining the problem in this way is not to deny the influence of private property rights and their concepts on the way of testamentary succession, but to note that in the actual process of testamentary succession in Tang and Song Dynasties, "ancestral inheritance" and "portal" are integrated, and inheriting ancestral inheritance is only a means and exchange condition, so it is the real purpose of the testator to carry on the family line and establish a family portal, which is not completely consistent with the purpose and nature of modern western testamentary succession.

To understand the essence of testamentary succession in Tang and Song Dynasties, we should also pay attention to the specific historical background. Since the Warring States period, although the family organization still exists, although the patriarch has the power to discipline the ethnic group, in fact, a family has become an independent living, childbirth and production unit, and the parents in the small family play the most direct and frequent management role. The power of parents in a small family is more specific than that of the head of the family, and their responsibilities are more comprehensive and important. They not only have the right to discipline, the obligation to protect, and the responsibility to support family members. More importantly, they must ensure the continuation of small families and cannot close the door behind them. Separation is to carry on the family line, although the objective function of separation is to form and maintain the existence of a family, subjectively to continue the small family; The so-called family line is mainly to continue one's own immediate family, rather than the so-called "clan inheritance" to continue the family. Because after separation, the blood relationship is passed down vertically in a single line, even if other branches of the family, including brothers' small families, prosper again, it will not help the defects of this branch (small family), and they still face the problem of how to retain and continue their small families. This is the reason why the parents of the lost family tried their best to establish the heir or adopted son-in-law as the son-in-law, and it is also the reason why the method of combining testamentary succession and inheritance mainly exists in the lost family.

After understanding this truth, we will understand the unique form of property ownership in the Tang and Song Dynasties and even the whole ancient China-not the so-called state (or emperor) ownership, nor the modern western European-style individual ownership, but a form of ownership with the family as the basic property unit and "* * *" as the substantive content; Only family property without personal property (in other words, no individual has complete property ownership) is the basic feature of the ancient property ownership form in China, that is, the property rights relationship.