Characteristics and functions of ancient contracts in China.

In the long history of China's 5,000-year civilization, contract, as one of the symbols of civilization, appeared as early as the Shang and Zhou Dynasties. With the changes of society, the contract system is also developing. By exploring the ancient contract system in China, this paper analyzes the reasons for the development and changes of the contract system in China and the influence of various social factors on the contract system, so as to better improve the relevant civil legislation in contemporary China.

First, the restriction of the subject identity of China ancient contracts.

(A) the reasons for the restriction of the subject identity

1. Self-sufficient natural economy is its soil.

The economic base determines the superstructure, and the contract system in ancient China certainly depends on the economic base in its social period, which will also have a certain reaction to it. In feudal society, farming by men and weaving by women was a self-sufficient natural economy. Crops were generally only consumed by their own families, and there were few tradable movable property left. In addition, the Western Zhou Dynasty implemented the agricultural land system, the land was owned by the state, and there were few private real estates owned by the people, so the transaction scope was narrow. Therefore, the development of contract system is relatively slow.

2. The influence of slave society should not be underestimated.

During the Spring and Autumn Period and the Warring States Period, the slave society was coming to an end, and feudal social forms began to appear. The two are intricately intertwined, and the social form of China has changed. At this stage, the form of feudal society was not yet mature, and there were remnants of slave society, especially at that time, when people were commercialized and slaves were regarded as the object of contract exchange, and they lacked the basic qualifications to become civil subjects, which could be reflected in the contract system at that time.

(B) the performance of changes in identity restrictions

1. Limitation and deterioration of subject qualification of cohabitation contract

About 5,000 years ago, China entered a patriarchal society, and male parents enjoyed a dominant position in the whole family affairs. For example, in the Tang and Song Dynasties, there was a law that said, "Those who live together are not as good as their children, and those who take wealth for personal gain, ten horses are ten, and ten horses plus one will be fined one hundred." It can be seen that using family property without the consent of male parents will face severe punishment.

2. The restrictions on the qualifications of officials as contract subjects have been continuously strengthened.

Since the Qin dynasty unified the whole country in 22 1 BC, an authoritarian regime with highly centralized characteristics has been established. In order to facilitate the efficiency and position of rulers and maintain the stability of political power, the management of officials has become stricter, which is not only manifested in political identity, but also in civil activities of officials. Obviously, the legislation intentionally prohibits officials from becoming the subject of contracts. Since the Tang and Song Dynasties, this situation has begun to change. For example, the Tang law prohibits officials from "borrowing prison property", but it does not prohibit lending prison property to the supervised person.

It can be seen that the legislation at that time set one-way restrictions on the borrowing of officials. After the Qing Dynasty, the restrictions on officials' borrowing became more severe, from one-way adjustment to two-way adjustment, which not only prohibited officials from "borrowing money and goods under supervision", but also prohibited prison officials from borrowing money, owing debts and pawning property within their jurisdiction.

Second, the development of ancient contracts in China.

(A) the development of ancient contracts in China

With the development of dynasties, the ancient contracts in China developed from the earliest simple judgments to more complex contracts. Generally speaking, there are three forms of contracts.

1. storytelling style

The book-judging style originated in the Western Zhou Dynasty and is the original "model" of our contract. According to the different forms and regulations of commercial activities, it can be divided into attachment, pledge and contract. For example, in Zhou Li, it is recorded that "on the sixth day, I heard the deed of giving books" and on the seventh day, I heard the deed of selling and buying books "(Zhou Guantian Guan Xiaozhai).

2. Contract type

Compared with previous contracts, contractual contracts have the characteristics of modern contracts and were widely used in feudal society at that time. This kind of contract follows the previous form of duplicate, which is characterized by folding the two contracts in half, butting the back, and then marking the word "contract" at the merger place, so that the right half of the word "contract" is on the back of one contract; Its left half is on the back of another contract. If the "contract" on the back of the two contracts really matches, it means that this contract is true. At this point, the contract is no longer a simple transaction certificate, and both parties will write some contract terms that are beneficial to their own interests.

3. Single contract type

A single contract refers to the contract issued by the debtor to the creditor according to the agreement, which is mainly used in the relationship of no sale, mortgage, pawn, lease and loan. Single deed first appeared in Wei, Jin, Southern and Northern Dynasties, and its original mode was pledge many years ago. In the Tang Dynasty, the single deed developed to a certain extent and was widely used in sales contracts. Because the form of a single contract is very different from that of a contract, we can only verify its authenticity from the single contract itself, so the authenticity of the contract must be discounted.

(2) The contents of the contract are constantly enriched.

There is almost no essential difference between the contract content and the contract content in modern civil law, which refers to the rights and obligations of both parties stipulated in the contract. With the gradual development of science and technology such as papermaking and printing, the development of contract has also developed, its scope of application has been continuously expanded and the contract system has been continuously improved. People are more and more accustomed to agreeing on some things in daily life through contracts, so the rights and obligations involved in contracts are more complicated. Affected by this "market demand", the enrichment of contract content has become a necessity in a sense.

1. Simple Contract in Shang and Zhou Dynasties

In the early days of slave society, the primitive habit of exchange gradually evolved into trading norms and customary laws, which continued until the Western Zhou Dynasty, and then the contract system appeared. At the peak of slave society, contracts gradually penetrated into more civil activities, no longer limited to commodity exchange, but refined, roughly divided into three kinds of contracts: buying and selling, leasing and lending. The content of the contract in this period is relatively simple, involving only some basic rights and obligations, generally including the time and place of concluding the contract, the names of the parties, the subject matter, witnesses, oaths and so on. At that time, papermaking was not developed, and most of the characters were engraved on Oracle Bone Inscriptions and bronzes. This inconvenience greatly limits the detail of the contract itself, so that it must have the characteristics of simple content. So the contract at this time can only be used as a simple credit certificate.

2. Lease contracts and guarantee contracts in Qin and Han Dynasties.

Qin and Han Dynasties were the embryonic stage of feudal society. During this period, the feudal system was gradually formed and constantly improved through the maintenance of various rulers. During this period, the economy developed rapidly and the national wealth increased day by day. The state began to affirm and protect private property by law, which promoted the prosperity of feudal economy to some extent.

At the same time, the feudal society in the transitional period has also undergone obvious changes. In order to consolidate its class status and broaden its own interests, the landlord class gradually stepped into the political arena and began to participate in national politics through its own conditions and abilities in order to obtain greater interests. End printing

As a result, the content of the contract began to serve the landlord class, resulting in tenancy and guarantee contracts, that is to say, the field of contract adjustment was wider than that of Shang and Zhou Dynasties, and the resulting civil activities were very active and the contract system was further improved.

3. Highly developed contracts in Sui and Tang Dynasties

The Sui and Tang Dynasties ushered in the heyday of feudal society, with very complicated economic relations and more frequent commodity trade. The "Di Dian Ru Yun Tun" described in the history books vividly illustrates the scene that Di Dian was set up in large numbers among the people. After the early Tang Dynasty, Didian not only served as a place for goods storage and transit, but also merchants and tenants stayed and rested in it. In addition, with the development of cities along the Yangtze River, there has been a "flying money" similar to the current draft, which has facilitated commodity trade activities to a certain extent and promoted the development of commodity economy. With the increase of people's demand, the types of contracts have become rich and specific. Looking through the legal texts of the Sui and Tang Dynasties, we can see that there were various contracts such as buying and selling, lending, guarantee, leasing and entrustment. From this perspective, the contract system not only reflects the will of the rulers, but also reflects the demand of economic development for society at that time.

Under the premise of following the previous contract system, the Sui and Tang dynasties further improved the content, and the sales contracts began to be divided into movable property sales contracts and real estate sales contracts. In addition, the guarantee system is also classified in detail. The law of Tang Dynasty stipulated a series of basic spirits similar to those of modern civil law, such as "property protection" and "personal protection" (called "pledge" and "personal reward" respectively in the law of Tang Dynasty). In addition, if the debtor defaults and cannot repay the debt, the creditor can "draw lots" and seal up his property independently, which is different from what is stipulated in our civil law today.

4. The popularity of contract system in Song and Yuan Dynasties.

With the improvement of land commercialization and the implementation of tenancy system in Song Dynasty, the enthusiasm of labor producers also increased, so social productive forces naturally developed. Coupled with the interests of officials and businessmen, the concept of emphasizing agriculture and restraining business has changed to a certain extent. In Song Dynasty, commodity economy showed signs of prosperity, and trade activities generally contracted. On the basis of previous development, the types of contracts are richer and the classification is further refined. At the same time, according to the legislation of the Song Dynasty, signing a contract must be stamped with the official seal and the corresponding handling fee paid, which shows that the contract system has been incorporated into the system, and with the more formal management, the ruling class has paid more and more attention to its development, which shows that the ruling class has formally standardized the contents of the contract by law.

5. The content of the contract system in Ming and Qing Dynasties is becoming more and more perfect.

Ming and Qing Dynasties were the end of feudal society. During this period, the spread of culture and information reached the peak of history, people's thoughts became active, and the development of commodity economy showed an irresistible trend. With the further development of commodity economy and the emergence of capitalism, business activities are more active, and the development of contracts has reached a new level, especially the real estate transaction system has been further developed.

Specifically, the Qianlong Code stipulates the time limit of the right of redemption in the pawn trading system. If the pawnshop can't redeem it after the statutory time limit, the pawnshop will punish it.

More carefully, the law is mandatory for the duration of pawn, which excludes the independent agreement of both parties on the upper limit. If the agreed redemption period exceeds the statutory maximum period, it will be recognized as a sales contract, that is, the nature of the contract has changed and the deed tax must be paid.

It can be seen that the contract of Ming and Qing dynasties has been more detailed and reasonable in design, which is similar to the current contract. Moreover, the legislation of this kind of contract has already had the embryonic form of contract in civil law, which indicates the maturity of the contract system at that time.

Third, the enlightenment of China's ancient contract system

Through the study of the development process of China ancient contract system, it is not difficult to see that, on the one hand, the social form and the development degree of social civilization have great influence on the contract system, and the will of the ruling class plays a decisive role in the control of civil activities and the formulation and development degree of civil laws.

On the other hand, the contract system reflects the basic situation of a country's civil activities, the country's economic system and the degree of economic development, and also has a strong reaction to social economy and even political formation.

Fortunately, the contract system in China has been progressing and developing. Studying the ancient contract system is not only of historical significance, but also helps us to master certain laws of law and economics, which is of far-reaching significance for optimizing civil legislation and adding vitality to China's market economy.