论清代徽州禁约合同——兼议与禁约告示、禁约碑之区别

中国古人习惯于用合同的方式来解决各种财产纠纷和社会矛盾。禁约合同是古代合同类型之一种,多是同族、同村人等为禁止盗窃、禁止砍伐树木、保护荫木来龙水口等事务,共同立约承诺并议定罚则的合同文书。部分禁约合同,由于请求官府支持,而转化成禁约告示、禁约碑,约束范围扩大、效力上升,已可视为乡规民约。禁约合同本身没有外部约束力,其内部约束力是传统合同"信"价值的表达。禁约合同是私人间由于财产的共有或公有产生一种调和权利纠纷的自发秩序,也是地缘社会维护生活安宁,将一些陋习予以禁止,共同约束自身和抵御外来侵犯的约定。然而,从禁约合同、禁约告示、禁约碑等的整个体系来看,禁约产生和运行是需要外部保证的,这种外部保证就是国家法或官方的支持。据此,禁约合同才能发挥基层社会调和权利纠纷的作用。

An Analysis on the Restraint Contract in Huizhou during Qing Dynasty：Also on the Differences among Restraint Contract,Restraint Notice and Restraint Stele

The ancient Chinese used to approach the settlement of property disputes and social contradictions according to contracts. The restraint contract, a type of ancient contract, is a contract reached and by people of the same ethnicity or from the same agreed village, mostly on the penalty of theft and tree felling for the prohibition thereof and on the protection of woods, the source of mountain ranges and water. Some restraint contracts, due to the government support, transformed into restraint notices and restraint stele with expanded scope and enhanced effectiveness and can be regarded as village regulations and agreements. However, the re- straint contract doesn＇ t have external constraint force and the internal restraint force reflects the value of ＂trust＂ in traditional contracts. Restraint contracts are the spontaneous order to reconcile rights disputes arising from the property sharing. It is also the agreement on self-constraints and the defense against outside intrusion for the purpose of maintaining local peace and the prohibition of outmoded conventions harmful to harmonious order. However, judging from the whole system of restraint notices, restraint contract and restraint stele, the generation and operation of restraint contracts require external guarantees. Such external guarantees are national legislation or official support. Restraint contracts won＇ t play the role of reconciling rights disputes in grass-roots communities unless the state law supports the effectiveness of such self-regulation.