地权有关问题再讨论——兼答曹树基先生-《中国农史》

文章信息/Info

Title:: Discuss Some Questions about Land Rights again and Reply to Mr. Cao Shuji

Author(s):: LIU Zhi; （History Department, East China Normal University, Shanghai 200241）

Keywords:: Yazu; permanent tenancy; One field Two owners; relative Tianmian rights; publicly recognized Tianmian rights

摘要:: 押租特别是永佃押租，常与一田二主相牵涉一起，难以区分。押租其实相当于佃户典入田面权，也形成地权的分割和广义上的一田二主。永佃押租以及垦荒永佃形成的“相对的田面权”，并非是永久彻底的地权分割，佃户可以退佃但不可以出卖田面，与“绝卖”意义上一田二主的“公认的田面权”相比，其实质区别是相当于土地交易中典与买卖的不同。因此，“相对的田面权”向转化“公认的田面权”的关键是佃户可以出卖田面，而同时地主不再为退佃及退还押租金或垦荒工本费负责，相当于完成典向绝卖的转化。传统社会民间土地市场中，地权可以多形态、分层次、分时段的交易。

Abstract:: It is difficult to distinguish Yazu (押租，deposit-required land tenancy), especially in its permanent tenancy form, from "One field Two owners"（一田二主）. Yazu in its real sense means that tenants acquire Tianmian rights (田面权，land tenancy rights with partial land value) by paying deposits, thus dividing the ownership of the land in half and creating "One field Two owners" in its broad sense. The relative Tianmian rights accruing from deposit-required permanent tenancy or permanent tenancy of reclaimed wastelands, in which tenants can cancel the tenancy but cannot sell Tianmian, do not constitute the permanent and complete division of land ownership. The real difference between relative Tianmian rights and publicly recognized Tianmian rights in "One field Two owners" which is salable is similar to that between the Dian (典，conditional sale) and the sale in land market. Therefore, the key for the transformation of "relative Tianmian rights " into "publicly recognized Tianmian rights" is that tenants are authorized to sell Tianmian while the landlord is no longer responsible for cancelation of tenancy or refund of deposits or compensation for wastelands reclamation, which is equivalent to a complete transformation from Dian to sale. In the civil land markets of traditional society, land rights can be traded in multiple forms, by different levels and at divided periods.