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上海交通大学收集的鄱阳湖区民间文书,记录了清代中期江西都昌县曹氏与鄱阳县杨氏之间的一桩官司。两姓就两县交界处三片湖面的产权,从乾隆四十一年(1776)一直争讼到嘉庆四年(1799),从鄱阳湖一路打官司到北京城。通过对相关58件文书的分析,结合其他材料,我们发现:虽然原告方曹姓将自己描绘为受害者,但实际上对争议湖产不具有充分的产权依据,是利用各种借口来侵占杨姓湖产。这个案例表明,清代民事司法具有积极保护民人产权的一面:正是官方对民人产权的保护,才迫使强势的曹家承认弱势的杨姓的产权。更重要的是,官方对这个纠纷的解决颇有创意:先根据证据判明是非,认定权益归属,然后引入市场机制,促使双方达成双赢的共识。这种法律与市场的双管齐下,比仅仅依法判定是非,更能抓住产权纠纷的根本。
The Poyang Lake area folk literature collected by Shanghai Jiao Tong University recorded a case between Cao of Duchang County and Young’s of Poyang County in the middle of the Qing Dynasty. Two surnames on the two counties at the junction of three lake property rights, from Qianlong forty-one years (1776) has been a lawsuit to Jiaqing four years (1799), all the way from Poyang Lake to the Beijing city. Through the analysis of the relevant 58 instruments and other materials, we found that: although the plaintiff Cao surnamed described himself as a victim, but in fact did not have sufficient property rights for the controversial lake production, it is to use various pretexts to encroach on Yang Surnamed Lake. This case shows that civil justice in the Qing Dynasty has the positive side of protecting the people’s property rights: it is the government’s protection of people’s property rights that compels the powerful Cao to admit the property rights of the disadvantaged Yang. More importantly, the government is quite creative in settling the dispute by first identifying the right and wrong from the evidence, determining the ownership of the rights and interests, and introducing the market mechanism to promote a win-win consensus between the two sides. This two-pronged approach of the law and the market, than just just judgments right and wrong, can grasp the fundamental dispute over property rights.