变革与转型:宋代“别籍异财”法的时代特色、成因及意义论析

宋代"别籍异财"法鲜活的时代特色为:由唐及宋初的妇女奁产不在兄弟财产析分之列,发展到北宋仁宗时的非因父祖财产及因官自置财产,不在论分之限;由唐及宋初的父母服阕后的合用析户,发展到北宋中前期的父母葬后即可辄析家产;由唐及宋初的父母主持不脱离户籍的"生分",发展到南宋时期的父母在世,兄弟之间的完全"别籍异财";由唐代对"别籍异财"者的严禁与刑罚,发展到宋代对"别籍异财"者的逐渐认同与宽容。宋代"别籍异财"法特色的生成不仅与家庭个体的财产权利意识高涨、已婚妇女的推动有关,更与家产争讼有关;其嬗变历程无疑为我们深刻认识宋代法律的近世化转型提供了一种崭新的视角,亦昭示了法律须随社会变动而变动的法律哲理。

Change and Transformation:Analysis of the Characteristics of the times of Family Break-up Law in Song Dynasty,Its Causes and Its Significance

The vivid characteristics of family break-up law was mainly reflected as follows.Women’s dowry mustn’t be divided among brothers during Tang Dynasty and initial stages in Song Dynasty,which developed not to divide up salary from official position and private property,which was not from parent;Brothers mustn’t break up the family and live apart during the three years after the parent’s death in Tang Dynasty and initial stages in Song Dynasty,which gradually developed to divide up family estate after the burial of parents before the medium term of the Northern Song Dynasty;Brothers only can divide up family estate presided by parents,without separating themselves from the domicile during Tang and initial stages in Song Dynasty,which developed to completely divide up family estate and break away from the domicile among the brothers during Southern Song Dynasty;Dividing up the family estate and breaking away from the domicile must be forbidden and given a serious penalty during Tang Dynasty,which gradually developed to be identified with and boren with during Song Dynasty.Family break-up law not only related to the rising awareness of individual property rights and the impulse of married women,but also more related to frequent lawsuits about family estate.The evolution of Family break-up law in Song Dynasty not only provided a new view for us to understand the law transformation of modernization about Song Dynasty,but also proved legal philosophy that law must change with the social changes.