Comparison between Roman Contract and China Contract Law

Discussion with the author of Roman Law and China Ancient Contract Law (text)

Xu Zhongming [Law]

It is generally believed in academic circles that the contact, collision, and even absorption and integration of China's traditional legal culture and western legal culture began with the revision of laws in the late Qing Dynasty. Recently, Professor Hu Liuyuan and Professor Feng Zhuohui published the article "Roman Law and the Ancient Contract Law of China" (hereinafter referred to as Hu) [1], which studies from the perspective of the history of economic and cultural exchanges between China and foreign countries, and innovatively puts forward that China absorbed and integrated the beneficial elements of Roman legal culture during the Han (Eastern Han) and Tang Dynasties. In this regard, the author does not agree, and puts forward the following discussion opinions, seeking advice from two professors, Hu Liuyuan and Feng Zhuohui.

one

Hu said: "With the progress of society, the scope of China's foreign commercial and trade exchanges has been expanding in several peak periods of commodity economy development in China's history, such as Zhou, Han, Tang, Song and Ming. Through foreign commercial exchanges, the legal culture of foreign nations and countries has naturally been absorbed and integrated into the legal system construction." Especially with the opening of the Silk Road in Han Dynasty, there were frequent and long-term trade activities between China and Rome. Therefore, "China's legal culture will inevitably accept, absorb and integrate the beneficial elements of Roman law. Naturally, China's civil law will also draw nutrition from Roman law and develop itself." He also said: "This kind of integration is most prominent in the ancient contract law of China." Then he said: "After the Eastern Han Dynasty, with the opening of the Silk Road, the concept of ancient contracts in China began to change"; "From the Southern and Northern Dynasties to the Tang Dynasty, the concept of contract changed qualitatively." By analyzing Hu's reasoning logic and methods, we can find that: firstly, with the development of silk trade between China and the Roman Empire, contract law, as a link of trade, has the possibility of contact; Secondly, because Roman contract law was the most developed in the world at that time; Thirdly, just after the frequent silk trade between China and the Roman Empire, the concept, content and types of ancient China contract law appeared some factors similar to those of Roman contract law; Finally, it is concluded that China's ancient contract law must absorb and integrate the beneficial results of Roman contract law. However, the author believes that some problems in this period are worth pondering and need to be confirmed.

(1) Let me start with China's understanding of the Roman Empire. Although with the rapid development of silk trade between the two countries, mutual understanding and understanding have deepened. According to the historical data of China, the records of the later Han Dynasty recorded the Roman Empire in an all-round way. Because the text is too long, I don't quote it all. However, from all the existing documents in China during the Han and Tang Dynasties, there is no trace of Roman law, especially contract law. For example, the relevant words in the Book of the Later Han Dynasty briefly recorded all aspects of the Roman Empire, including the political system; However, there is not a word about the Roman private law system that has attracted worldwide attention. This tells us, to some extent, that perhaps China was not impressed by the Roman legal system at that time; Even though the official and private Chinese businessmen who traded silk with Rome at that time had some knowledge and contact with Roman law, they did not attract the attention of the ruling class, so that they left no trace in the existing history.

(2) We will study the trade relations between China and the Roman Empire. In my opinion, it is necessary to briefly discuss the trade relationship between China and the Roman Empire. This is because: firstly, China is not only the earliest known silk producer in the world, but also China began to produce silk as early as 5000 BC [3]; Before the introduction of sericulture technology in the Eastern Roman Empire in the 6th century, it was also considered as the only silk-producing country in the world [4]. Secondly, the understanding of China in western countries mainly started from silk. Now some people call China "zhina", but it actually comes from silk [5]; Seres (Silk) "that is, the name of China in ancient Rome" [6]. Thirdly, in the trade between China and the Roman Empire, silk is not the only thing, but it is also the most important thing, so that British scholar Hudson thinks: "For Rome, silk trade and trade with China are actually the same thing, ... silk accounts for at least 90% of China's exports to Rome." [7] Finally, and most importantly, under the premise of responding to Hu's argument, the author only chooses relevant issues for a brief discussion, with a view to finding out: To what extent can the silk trade between China and the Roman Empire lead to the absorption and integration of China's ancient contract legal system? Is there any inevitability?

(1) The opening of the Silk Road in the era of Emperor Wu of the Han Dynasty was generally marked by the hollowing out of Zhang Qian (BC 138). Although the silk trade between China and Rome has greatly increased, the silk trade between the two countries is basically indirect. At this point, Hu also admitted: "China's goods were even transported to Daqin, the Roman Empire." Mr. Yang Xiaole put it more clearly: "Despite the Silk Road, there was no direct commercial contact between the Roman Empire and the Han Dynasty in China before 1 century. Roman merchants failed to reach China by land, and China people failed to reach Rome by land. The business contact between them depends on various intermediaries, especially the intermediaries in Pattaya (today's Iran). " [8] During this period, China's silk was mainly imported from the eastern provinces of the Roman Empire, such as Egypt and Syria. Stavri Anoos, an American scholar, pointed out: "Most of the merchants in Rome are Greeks and Syrians." As we all know, Egypt (30 BC) and Syria (64 BC) are both Roman provinces, but they have not been influenced by much Roman culture in social politics, economy and customs [10]. Therefore, it is an unknown factor whether its silk trade with China is conducted in full accordance with the norms of Roman contract law [1 1]. In addition, according to the records in the Biography of the Western Regions in the Later Han Dynasty, the first direct entry of Roman merchants into China was in the 12th year of the Eastern Han Dynasty (A.D. 100). Yun Wen said, "In November, Meng Qing and Du Le from the Western Regions sent envoys to offer gold seals and purple ribbons." [12] Among them, the origins of "Mengqi" and "Dule" are controversial. According to Mr. Lin Meicun's textual research, Macedonia (Meng Qi) and Tyre (Dole) are both eastern provinces of the Roman Empire. Later, there were several articles in the history of China [13], some of which were so-called "envoys", and scholars generally believed that some businessmen made fakes for their own benefit [14]. However, the silk trade is still relatively indirect. In this regard, Mr Hudson believes that despite the political division and chaos in China, the silk trade continued for most of the year from 200 to 600. At the same time, it is pointed out that in the north, this trade seems to be mainly carried out by the Sogdian caravan [15]; In the south, due to the turmoil in the Central Plains and social unrest, silk trade has expanded. However, this trade is maintained by marine peoples such as Malay Peninsula, Sumatra, Java and Borneo [16]. In this case, there were many problems in how China absorbed and integrated the Roman contract law in the Han and Tang Dynasties.

(2) Mr. Shen pointed out that "the biggest customer of China silk is the Roman Empire" [17]. At the end of Rome and the Republic of China, Caesar appeared in the theater because he was wearing a silk robe, which was considered extremely extravagant at that time. However, from then on, Roman men and women competed for silk clothes, even "porters and business trips were no exception" [18].

In this regard, we must point out the following two points: First, "China's silk products are exported to the west through three channels, namely, the gift of the China government to the western ethnic minorities, the barter exchange between the China government and the ethnic minorities, and the merchants' running activities on the Silk Road" [19]. Mr. Wu Bolun added: "In addition to large-scale awards, there are also many exchanges between the Central Plains government and the border minority governments." [20] Among them, silk imported from western minorities was also exported to the Roman Empire. In this way, China's direct export of silk through trade is much less than expected. Secondly, as scholars have pointed out: "Most of China's silk is shipped by foreign businessmen, not all of it is exported by China people." [2 1] In this way, foreign nationals and foreign businessmen traveling along the North-South Silk Road must abide by the relevant laws and regulations of China once they enter China. In the Han dynasty, foreign trade actually took two ways: one was official camp, called envoy; Second, private ownership must be approved by the government [22] As for the specific provisions of foreign nationality and laws that foreign businessmen should abide by, there are gaps in the history books, which cannot be discussed in detail; However, judging from the cases of judicial practice in the Han Dynasty, the principle of territorialism was adopted, that is, foreign businessmen must abide by the laws of China [23]. It can also be speculated that the laws of China should be applied to foreign nationals and foreign businessmen when dealing with China subjects in China. Until the Tang Dynasty, the China government's legal control over foreign trade was particularly strict [24]. In addition, the restrictions on foreign trade and its management system are stipulated in the Tang law and discussed by scholars [25]. Here, we quote two applicable principles of foreign-related legal relations in the Tang Dynasty. "Explanation of Tang Law and Famous Cases" stipulates: "All outsiders and criminals of the same kind shall follow this customary law; Those who commit various crimes will be tried by law. " This is the principle of combining individualism with territorialism. However, from the perspective of foreign businessmen trading with China government and businessmen, the laws of China should be applied. Another provision in the Tang Law revealed some news. The exposition of "crossing the border and blocking the border" in the Tang Law stipulates: "Its foreigners cross the border, deal with insiders, offend and cross the border with insiders, and still listen. "On this basis, foreign nationals and foreign businessmen must obviously abide by the laws of China when trading with China. Therefore, it is hard to imagine that Roman businessmen can trade with China government and businessmen according to their own legal norms; China consciously studied and absorbed the Roman contract legal system to reform the laws of China. If we consider the international prestige of China during the Han and Tang Dynasties, we will not lack confidence in our own legal system. It is difficult to absorb and integrate foreign legal systems from the perspective of the distinction between foreign countries and summer countries, the ideology of Huaxia Center and the values of Confucian ethics.

To sum up, the author believes that in the process of silk trade between China and the Roman Empire, even if it is possible to come into contact with Roman legal culture, especially contract law, it may not necessarily absorb and integrate Roman contract law. To say the least, even if it is possible to absorb and integrate Roman contract law, it is only a possible speculation, not necessarily what Hu said is "natural" and "inevitable". In addition, considering the faltering and intermediary nature of silk trade itself, this possibility is not great and needs to be confirmed. Perhaps some critics will ask: Didn't Hu give some examples? In this regard, the author believes that this is only a comparison, not an argument.

two

Hu's basic view on China's ancient contract law absorbing and integrating Roman contract law is that before the Eastern Han Dynasty, China's contract only paid attention to its form of conclusion and considered its role as a voucher in property disputes. After the Eastern Han Dynasty, the word "contract" appeared in the contract. From the Southern and Northern Dynasties to the Tang Dynasty, the concept of contract changed qualitatively. When signing a contract, it is emphasized that both parties have the same meaning, and the national code stipulates this concept. To this, we must add one more point. First of all, Hu believes that "contract" contains the expression of intention agreed by both parties to the contract. That's right. In this regard, Mr. Zhang Chuanxi also said: "The contract is to meet the same meaning. Writing' contract' or' contract' not only marks the joint and several, but also reflects the intention of both parties. " [26] In the first sense, there is no essential difference between "contract" and the so-called "quality agency", "government agency" and "contract agency" in the Western Zhou Dynasty. Because "contract" can be understood as a contract to verify the word "same" [27]; What is more noteworthy is that this form of contract was not only found in ancient China, but also adopted in the history of Roman contract. Mr Cather pointed out: "The existing Roman contract document is testimony, which is very similar in form to the documents of Han Dynasty in China. Usually it is also engraved on the wooden slips in duplicate, which is divided by the parties. The original text was written in a third-person narrative way. The name of the witness is attached. When a dispute arises, the witnesses on the list are summoned to testify. " [28] Obviously, they are independently formed [29]. In the second sense, "contract" means that the parties to the contract express the same meaning, which should be the general rule of contract behavior in ancient and modern China and foreign countries; The establishment of a contract requires the consent of all parties, but there are differences in legal understanding, such as depth, details and emphasis. In fact, the contract theory in Rome has been very developed, but China did not elaborate on it, even after the Tang Dynasty, because of the profound differences in personality, politics and economic structure between the two cultures. The desirability of this contractual behavior was not formed by Hu after the Eastern Han Dynasty. According to the Five Sacrifices to Ding Wei in the Western Zhou Dynasty, after hearing Qiu Wei's proposal to exchange land, the five ministers all said, "Is it right to ask for capital?" Li Naixu said, "Yu @ ② Gu @ ① Tian Wutian". "[30] The same is true of the Western Han Dynasty. For example, in Historical Records Biography of Lu Jia, Lu Jia and Wu Zixu reached an agreement on family property analysis and support. Another example is Wang Bao's Contract, which says that when Yang Hui's husband bought a slave toilet, he reached an agreement with the toilet to "keep the tomb".

Secondly, let's take a look at Hu's "Ma Brothers Buy Mountain in the First Year of Jianning", which is an example of the word "about". Here, people in the Eastern Han Dynasty called "contract" "bié @ ③", which in itself shows that people did not make a substantive distinction between "contract" and "bié @ ③" at that time. So, what does "bié @ ③" mean? Liu Xi's "Notes on Tales of Famous Books" said: "Bié @ ③, don't do it. In the middle of the big book, the middle is broken. " This is similar to Zheng Xuan's interpretation of Fu in the Eastern Han Dynasty. For the contract form of "bié @ ③", Wang Guowei, a master of Chinese studies, interpreted it as "bié @ ③ with two copies"; Its shape is "O @ ④ tile, which looks like a semi-t ǒ ng @ ⑤, with a surface of táo@④ Yu ē @ ⑤ and a bamboo cover". [3 1] It can be seen that "bié @ ③" promulgated in the Eastern Han Dynasty is also a contract in the form of "judgment". Based on this, the author believes that the "contract certificate" appearing in the Eastern Han Dynasty is in the same strain as the "judgment book" since the Pre-Qin Dynasty; In this regard, it should not be immediately concluded that it is influenced by Roman contract law. In addition, the appearance of "contract deed" has a great relationship with the changes of written materials [32], which may be a more fundamental reason. Therefore, when we study the ancient contract legal system in China, we don't have to stick to the Roman contract legal system.

Finally, let's analyze Hu's special attention to the contract from the Southern and Northern Dynasties to the Tang Dynasty, that is, the agreement between the two parties. First, the author believes that there is no doubt that saying "harmony" or "harmony with" or "two harmonies" means that the parties to the contract agree. Mr. Zhang Chuanxi thinks: "The expression of this contract also reflects that it is a contract contract. For example, in the first year of Emperor Taizong's reign (690), Zhang Wenxin rented a land lease, saying, "Make two contracts, hold two contracts, and hold half each" (page 454 of the first series of Dunhuang Materials). The consistency of "two harmonies" and "two harmonies" is called "harmony" in A Brief Comment on the Law of the Tang Dynasty and the Criminal System of the Song Dynasty. That is,' contract'. " [33] This can be understood as a "two-in-one" or "harmony" contract developed from the logic of China's ancient contract law itself, rather than from any Roman contract legal system. Second, the so-called "harmony" is relative to "disharmony" or "strength"; Zhang Fei, a famous jurist in Jin Dynasty, said: "No peace is strong." [34] As early as the Qin and Han Dynasties, it was forbidden to force others to establish title deeds. For example, the Qin law stipulates: "The people have the responsibility (debt) and dare not be good at quality. Offenders will be punished." [35] In fact, the agreement of the contract is more clear in the ancient marriage contract of our country. The Book of Rites says: "The wedding ceremony should be harmonious with the two surnames ..." How to "combine" the law? First, there must be "the life of parents, the words of matchmakers"; Second, we must fulfill the "six rituals" of marriage. Although there is a matchmaker to lead the way, it is absolutely certain that the two parties (parents) who entered into the engagement are of the same meaning. This is at least a tradition since the Western Zhou Dynasty. This has nothing to do with "the buyers and sellers are not harmonious, but those who are more determined, ..." The Tang Dynasty is more conscious than the previous generation. In addition, there is no theoretical discussion on the contract in the Tang law. So the definition of agreement is different from that of Roman contract theory. Therefore, it is too arbitrary for Hu to think that it is influenced by Roman law.

(2) On the types and contents of ancient contracts in China. Hu also mentioned that the contract legal system of Han and Tang dynasties absorbed and integrated Roman contract law in other aspects. One is that "the increase of contract types in China during the Han and Tang Dynasties was almost the same as that in Roman law, indicating that contract types have been integrated with the Roman legal system since the opening of the China Silk Road". This method of "argument" is really surprising. Limited to space, I won't go into details here for the time being. In fact, as long as we put the increase of contract types in China during the Han and Tang Dynasties into the socio-economic development at that time, we can find that this is the inevitable result of the socio-economic development and changes in ancient China. Secondly, what is even more jaw-dropping is that Hu believes that the Roman legal provisions on lease contracts have been completely absorbed by the lease contracts after the Han and Tang Dynasties in China, and this absorption is not only the absorption of contract contents, but also the absorption of legal terms, such as the word "permanent tenancy". Say so irrefutable evidence, as if irrefutable evidence. However, Hu only compared three similar aspects of the tenancy contract between Rome and China in the Han and Tang Dynasties: the same meaning; Agreed rent; The type of target. In essence, as these three aspects of the lease contract, we can also find their clues in the documents of the pre-Qin era. For example, in the Zuo Zhuan of Han Feizi's Foreign Reserve, it is said: "The husband sells mediocrity, cultivates the tiller, the owner eats flowers, adjusts the cloth and seeks the easy, and does not love mediocrity, saying: If the tiller is deep, the tiller is familiar with it." Ordinary people devote themselves to cultivating the tillers, and those who have the ability to cultivate the fields do not love their masters. They said, "If the soup is beautiful, the money will be distributed in Yi Yun." Although this passage is not a pre-Qin employment contract document, it declares a truth; Not only is the writing quite literary, but it is also somewhat abstract; But as far as the employment contract is concerned, it can be seen that the above three aspects have been curbed. Although there are not many materials in the Qin and Han Dynasties (Western Han Dynasty), the comprehensive literature records and archaeological materials are relatively complete in three aspects, and the terminology is basically the same as that of the Tang Dynasty [36]. Therefore, the lease (or leasehold right) contract in ancient China [37] was completed in its own socio-economic environment and legal development history, and has nothing to do with the lease contract in Rome. For example, the lease contract is one of the four unfinished contracts in Rome. What is "unfinished"? This is not found in the ancient legal terms developed in China for thousands of years. By the way, if the lease contract in China has fully absorbed the Roman contract legal system since the Han and Tang Dynasties, isn't it strange that such an important legal clause has been refused? This is the crux of the problem.

Through the investigation and analysis of the above two paragraphs, the author's preliminary conclusions are as follows: first, Hu's argument is untenable; Secondly, the legal system of contract in China during the Han and Tang Dynasties was basically developed and perfected independently.