Discuss with the author of the article "Roman Law and Ancient Chinese Contract Law" (text)

Xu Zhongming [Legal Science]

Academic circles generally believe that traditional Chinese The contact, collision, and even absorption and integration of legal culture with Western legal culture began with the legal reform and revision of laws in the late Qing Dynasty. Recently, two professors, Hu Liuyuan and Feng Zhuohui, published an article "Roman Law and Ancient Chinese Contract Law" (hereinafter referred to as Hu Fengwen) [1]. They studied from the perspective of the history of economic and cultural exchanges between China and foreign countries, and created a new theory that China was in the Han (Eastern Han) and Tang Dynasties. During this period, it has absorbed and integrated the beneficial elements of Roman legal culture. The author disagrees with this and puts forward the following opinions, asking for advice from two professors, Hu Liuyuan and Feng Zhuohui.

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Hu Fengwen believes: “With the progress of society, during several peak periods of commodity economic development in Chinese history, such as the Zhou, Han, Tang, Song, Ming and other dynasties, , the scope of China’s foreign commercial and trade exchanges has been increasingly expanded, and through foreign affairs and commercial exchanges, it has naturally absorbed and integrated the legal culture of foreign nations and countries in the construction of the legal system.” (Emphasis added by the author, the same below) In particular, with the opening of the Silk Road in the Han Dynasty, there were frequent and long-term trade activities between China and Rome. Therefore, "Chinese legal culture will inevitably accept, absorb, and integrate the beneficial elements of Roman law. Naturally, Chinese civil law He also drew nourishment from Roman law and developed himself." He also said: “The most prominent manifestation of this fusion is in ancient Chinese contract law.” He further said: “After the Eastern Han Dynasty, with the opening of the Silk Road, the concept of ancient Chinese contracts began to change”; “The Southern and Northern Dynasties By the Tang Dynasty, the concept of contract had undergone qualitative changes." By analyzing Hu Fengwen's argument logic and methods, we can find that: first, with the development of silk trade between China and the Roman Empire, contract law served as a way to connect trade. The bond made it possible to contact; secondly, because Roman contract law was the most developed in the world at that time; thirdly, just after the frequent silk trade between China and the Roman Empire, the concept, content and types of ancient Chinese contract law appeared in some ways. Similar factors to Roman contract law; finally, the conclusion is that ancient Chinese contract law must have absorbed and integrated the beneficial results of Roman contract law. However, the author believes that there are some issues worth pondering and need to be confirmed.

(1) Let’s first examine China’s understanding of the Roman Empire. Although with the rapid development of silk trade between the two countries, the understanding and understanding of each other has also continued to deepen. Judging from Chinese historical materials, the "Book of the Later Han" has a more comprehensive record of the Roman Empire. Since the text is too long, I will not quote all of it [2]. However, judging from all existing Chinese documents from the Han and Tang dynasties, there is no trace of Roman law, especially contract law. For example, the relevant texts in the "Book of the Later Han" briefly record all aspects of the Roman Empire, including its political system; however, there is no mention of the Roman private law system that has attracted worldwide attention. This tells us to a certain extent that China may not have a deep impression of Roman legal system at that time; even though the official and private Chinese merchants who were engaged in silk trade with Rome at that time had some understanding and contact with Roman law, they did not attract the attention of the ruling class. , so that there is no trace in the existing historical books.

(2) Let’s examine China’s trade relations with the Roman Empire. The author believes that it is necessary to briefly discuss the trade relations between China and the Roman Empire here. This is because: First of all, China is not only the earliest silk-producing country known in the world, with silk production in my country as early as 5000 BC [3]; it is also considered to be the introduction of silk culture in the Eastern Roman Empire in the 6th century AD. Before silkworm technology, it was the only silk-producing country in the world [4]. Secondly, Western countries’ understanding of China mainly started from silk. Some people now call China “China”, which is actually derived from silk [5]; Seres (Silk) “is the ancient Roman word for the Chinese. It’s also a title” [6]. Thirdly, in the trade between China and the Roman Empire, although silk was not the only item, it was also the most important item, so much so that British scholar Hudson believed: “For Rome, the silk trade and the trade with China were actually the same thing. Things,... Silk accounts for at least 90% of China's exports to Rome." [7] Finally, and most importantly, in order to respond to Hu Fengwen's premise, the author only selects relevant issues to briefly discuss, in order to find out: between China and Rome. To what extent could the silk trade between empires lead to the absorption and integration of ancient Chinese contractual legal system into Roman contractual legal system? Is there any inevitability in it?

(1) The opening of the Silk Road in the era of Emperor Wu of the Han Dynasty is generally marked by Zhang Qian's "hollowing out" (138 BC). Although the silk trade between China and Rome has greatly increased, However, the silk trade between the two countries was basically indirect. Hu Fengwen also admitted this: "China's goods were even transported to the Qin Dynasty, that is, the Roman Empire." Mr. Yang Xingle put it more clearly: "Despite the Silk Road, the Roman Empire before the 1st century AD There were no direct commercial exchanges with the Han Dynasty of China. Roman merchants could not go directly to China by land, and the Chinese could not go directly to Rome by land. All business exchanges between them relied on various intermediaries, especially the Pagoda. A middleman in Tia (today's Iran).

"[8] During this period, Chinese silk was mainly imported from the eastern provinces of the Roman Empire, such as Egypt and Syria. American scholar Stavrianos pointed out: "Most of the 'Roman' merchants were Greeks and Syrians. ” [9] As we all know, although Egypt (30 BC) and Syria (64 BC) were Roman provinces, they did not receive much influence from Roman culture in terms of social politics, economy, and customs. 〔10〕. Therefore, it is an unknown factor whether it fully complied with the Roman contract law when conducting silk trade with China. 〔11〕 In addition, according to the records of "Book of the Later Han Dynasty: Biography of the Western Regions", Roman merchants entered China directly for the first time. In the twelfth year of Emperor Yongyuan of the Eastern Han Dynasty (AD 100), Wen Yun said: "In the eleventh month of winter, Mengqi and Doule of the Western Regions sent envoys to the emperor and gave him a gold seal and a purple ribbon. "[12] Among them, there are many disputes among scholars about which country "Mengqi" and "Doule" are from. According to Mr. Lin Meicun's textual research, they are both from Macedonia (Mengqi) and Tire (Doule). It was the Eastern Province of the Roman Empire. Later, there were several cases recorded in Chinese history [13], some of which were so-called "envoys". Scholars generally believed that they were fake merchants for personal gain [14]. Trade was still relatively indirect. In this regard, Mr. Hudson believed that during most of the period from 200 to 600 AD, although China was politically divided and chaotic, the silk trade continued: In the north, this trade seems to be mainly carried out by Sogdian caravans [15]; in the south, due to the instability and social unrest in the Central Plains, the silk trade has expanded, but this trade is also carried out by the Malay Peninsula. , Sumatra, Java, Borneo and other seafaring peoples [16] Under this circumstance, many questions arise about how China absorbed and integrated Roman contract law during the Han and Tang Dynasties.

(2) Shen Fuwei. The teacher pointed out that "the biggest customer of Chinese silk was the Roman Empire" [17]. At the end of the Roman War, Caesar appeared in the theater wearing silk robes, which was considered extremely luxurious at that time. However, from then on, Roman men and women. Nobles all strive to wear silk clothes, even "porters and servants are no exception" [18]

In this regard, we must point out the following two points: First, "Chinese silk fabrics are exported to the West for about 10 years." Through three channels, namely, the Chinese government’s gifts to Western ethnic minorities, the barter exchange between the Chinese government and ethnic minorities, and the activities of merchants traveling on the Silk Road” (19). Mr. Wu Bolun also said: “In addition to In addition to large rewards, there were also numerous exchanges between the Central Plains government and the border minority governments. "[20] Some of the silk imported to Western ethnic minorities was also resold to the Roman Empire. In this way, the silk exported directly from China through trade is much less than imagined. Secondly, as scholars have pointed out : “Most of China’s silks are shipped out by foreign merchants, not all by Chinese. "[21] In this way, once foreign nationalities and foreign merchants traveling on the North-South Silk Road enter our country, they must abide by the relevant laws and regulations of China. In the Han Dynasty, foreign trade actually adopted two methods: First, Those who are government officials are called envoys; the other is private individuals who must obtain permission from the government [22]. There is a lack of historical records on the specific provisions of the laws that foreign nationalities and foreign businessmen should abide by; however, judging from the judicial practice of the Han Dynasty, Judging from the individual cases, the principle of territoriality is adopted, that is, foreign merchants must abide by Chinese laws [23]. It can also be inferred that when foreign nationals and foreign merchants trade with Chinese subjects within our country, Chinese laws shall apply. In the Tang Dynasty, the Chinese government's legal control over foreign trade was particularly strict [24]. In addition, there were many provisions in the laws of the Tang Dynasty regarding foreign trade restrictions and its management system, and scholars have also discussed this [25]. Let’s quote two applicable principles regarding foreign-related legal relations in the Tang Dynasty. “Tang Lv Shu Yi· Ming Ling” stipulates that “foreigners will offend each other.” Offenders will be judged according to the law. "This is the principle of combining personalism and territorialism. However, from the perspective of foreign merchants trading with the Chinese government and merchants, Chinese law should be applicable. Another provision in "Tang Law" reveals some of this. Some news. "Tang Lv Shu Yi·Wei Ban" "Crossing the borders and fortresses" Shu Yi stipulates: "If a foreigner crosses the border and trades with a foreigner, if he offends a foreigner and crosses the border and trades with a foreigner, he will still be the same. Listen to the imperial edict. "According to this, foreign nationalities and foreign merchants must abide by Chinese laws when trading with China. Therefore, it is difficult to imagine that merchants in the Roman Empire could trade with the Chinese government and merchants in accordance with their own legal principles; China had consciously studied the Roman contract legal system , and absorbed it in order to transform Chinese law. If we take into account China's international reputation during the Han and Tang Dynasties, we will not lack confidence in its own inherent legal system. , and it is difficult to absorb and integrate foreign legal systems.

In summary, the author believes that during the silk trade between China and the Roman Empire, even if it was possible to come into contact with Roman legal culture, especially Contract law may not necessarily absorb and integrate Roman contract law. To say the least, even if it is possible to absorb and integrate Roman contract law, it is only a possible speculation, and it is not necessarily the "natural" and "natural" that Hu Fengwen talks about. "inevitable".

In addition, considering the tortuous and intermediary nature of the silk trade itself, this possibility is not very large and needs to be confirmed. Some commentators may want to ask: Hasn’t Hu Fengwen already given several examples? In this regard, the author believes that this is only a comparison, not an argument.

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Hu Fengwen’s basic view on the absorption and integration of ancient Chinese contract law into Roman contract law is that before the Eastern Han Dynasty, Chinese contracts only paid attention to the form of their formulation and considered their use in property disputes. The role of credentials in . After the Eastern Han Dynasty, the word "contract" appeared in contracts. From the Northern and Southern Dynasties to the Tang Dynasty, the concept of contract underwent qualitative changes. When signing a contract, it is emphasized that both parties have the same intention, and this concept is stipulated in the national code. We have to be a little more careful about this. First of all, Hu Fengwen believes that “contract” implies the unanimous intention of the parties to the contract. this is correct. In this regard, Mr. Zhang Chuanxi also said: "A contract means to unite and agree. Writing 'together' or 'contract' not only creates a verification mark for the contract, but also reflects the intention of the contracting parties." [26] 〕In the first sense, "contract" is essentially no different from the so-called "judgments" of the Western Zhou Dynasty such as "qualitative documents", "fu farewell" and "promising documents". Because "contract" can be understood as a contract that is verified by combining the word "tong" [27]; what is more noteworthy is that this kind of contract in the form of "judgment" was not only found in ancient China, but also in the history of Roman contracts. It has also taken this form. Mr. Kaiser pointed out: "The existing examples of Roman contract documents are testimonials, which are very similar in form to documents from the Han Dynasty in China. Usually, they are also engraved on wooden slips, in duplicate, divided between the parties. The original text is narrated by a third person. The names of the witnesses are appended to it. When a dispute occurs, the listed witnesses are called to testify."[28] Apparently they were formed independently.[29] In the second sense, "contract" means that the parties to the contract have expressed the same intention, which should be a common practice in contractual behavior at all times and in all countries. Generally speaking, the reason why a contract is established must obtain the consent of all parties, which is only a matter of legal understanding. The difference between depth, detail, emphasis and lightness. In fact, the Roman contract theory was very developed, but China had no elaboration on it, even after the Tang Dynasty. The reason lies in the profound differences in the personalities, political and economic structures of the two cultures. The desirability of this kind of contractual behavior was not developed after the Eastern Han Dynasty as Hu Fengwen claimed. According to the record of "Five Sacrifice and Wei Ding" in the era of King Zhou of the Western Zhou Dynasty: After the five ministers heard Qiu Wei's request for land exchange, "Zheng Nai asked Li and asked: 'Do you have land?" Li Naixu said: 'Yu＠②guǎ＠①天五田'" [30] There are many examples of this in the Western Han Dynasty. For example, "Historical Records: Biography of Lu Jia" records: Lu Jia and his five sons reached an agreement on family property analysis and support. Another example is Wang Bao's "Children's Agreement" which states: When Yang Hui's husband bought Bian Bing as a slave, he and Bian Bing reached an agreement on "but the tomb must be guarded."

Secondly, let’s examine Hu Feng’s article “The Ma Brothers Buy a Mountain” in the first year of Jianning, which exemplifies the word “contract”. Here, people in the Eastern Han Dynasty called "contract" "bié＠③", which itself means that people at that time did not make a meaningful distinction between "contract" and "bié＠③". Then, "bié＠③" is What does it mean? Liu Xi's "Shi Ming Shi Shu Qi" says: "bié＠③, do not." The center of the big book is the center of the book. "This is similar to the "Fu Bie" written by Zheng Xuan of the Eastern Han Dynasty. Regarding the contract form of "bié＠③", the master of Chinese studies Wang Guowei said: "bié＠③ is the same as the two books"; its form is "táo ＠④It is made of tiles, shaped like a half tǒng＠⑤, with two yuē＠⑥ on the surface, and the cover resembles the shape of a cut bamboo." [31] It can be seen that the "bié＠③" that came out in the Eastern Han Dynasty is also a form of "judgment" Based on this, the author believes that the "contract coupons" that began to appear in the Eastern Han Dynasty are in the same vein as the "contracts" since the Pre-Qin Dynasty; in this regard, we should not suddenly conclude that they were influenced by Roman contract law. The emergence of "contract" is also closely related to changes in writing materials [32]. Perhaps this is a relatively fundamental reason. Therefore, when studying ancient Chinese contract legal system, we do not need to adhere to the Roman contract legal system.

Finally, let’s analyze what Hu Fengwen particularly emphasized in the contract from the Southern and Northern Dynasties to the Tang Dynasty: “Two Harmonies and Deeds”, “Reconciliation First and then Debentures” and “Harmony and Tong”, which means that the parties have the same intention. First, the author believes that saying "harmony" or "harmony" or "two harmony" means that the parties to the contract express the same intention. Mr. Zhang Chuanxi believes that: "The expression of intention of such a contract also reflects its intention. Come for the contract. For example, in the first year of Tianshou of the Tang Dynasty (690), Zhang Wenxin's land lease deed stated: "Lianghe established the deed, holding two copies of the deed, each holding half" ("Dunhuang Materials" Volume 1, page 454). The agreement between 'Lianghe' and 'Lianghe' is called 'Hetong' in "Tang Lu Shu Yi" and "Song Xing Tong". It is also a 'contract'." [33] This can be understood as "Liang He" The "harmony" or "harmony" contract developed from the principles of ancient Chinese contract law itself, and did not originate from the Roman contract legal system. Second, the so-called "harmony" is relative to "disharmony" or "strength"; Zhang Fei, a famous legal scholar in the Jin Dynasty, noted: "Disharmony is called strong." (34) Regarding forcing others to establish land deeds, Behavior has been prohibited as early as the Qin and Han Dynasties. For example, the Qin Law stipulates: "The people have their responsibilities (debts), and do not dare to force them to do so. Violators will be fined two armors."

"[35] In fact, the agreement of the contract is more clear in the ancient Chinese marriage contract. "Book of Rites·Hunyi" says: "The person who is getting married will have the best of the two surnames... "How to "comply" with the law? Firstly, there must be "the orders of the parents and the words of the matchmaker"; secondly, the "six rites" of marriage must be performed. Although the matchmaker is involved, the two parties (parents) who enter into the marriage contract have the same intention. , is completely certain. This is at least the tradition since the Western Zhou Dynasty. This is not fundamentally different from the "Those who buy and sell are at odds with each other, but those who are more stubborn..." The Tang Dynasty was more conscious than the previous dynasties. Moreover, the law of the Tang Dynasty did not have any theoretical exploration of the consent of the contract. Therefore, the definition of consent was different from that of the Roman contract theory. Therefore, Hu Fengwen identified it as "Roman law." "Under the influence" is really too arbitrary.

(2) Regarding the types and content of ancient Chinese contracts. Hu Feng also mentioned in the article that the contract legal system of the Han and Tang Dynasties absorbed and integrated Roman contracts in other aspects First, it is believed that "the number of contract types in China during the Han and Tang dynasties is almost the same as that of Roman law, which shows that since the opening of the Silk Road, the types of contracts in China have been integrated with the Roman legal system." The method is really surprising. Due to space limitations, we will not discuss it in detail here. In fact, as long as we look at the increase in the types of contracts in ancient China during the Han and Tang Dynasties, we can find that this was the case in ancient China. The inevitable result of social and economic development changes. Secondly, what is even more shocking is that Hu Fengwen believes that the Roman legal provisions on lease contracts have been completely absorbed by Chinese lease contracts after the Han and Tang Dynasties. This absorption is not only contractual. The absorption of content, including the absorption of legal terms, such as the word "yong lease", is so conclusive that it seems to be iron-clad. However, Hu Fengwen only compared three similar aspects between Rome and the Chinese Han and Tang lease contracts: the meaning is consistent. ; Agreement on rent; Type of subject matter. In fact, as these three aspects of the lease contract, we can also find clues in the literature of the pre-Qin period, such as "Han Feizi·Wai Chu Shuo Upper Left" says: "The husband sells mediocrity and spreads it. A tiller, the master of the house spends money on good food, and a farmer who spreads cloth and wants to change money is not the kind of person who likes mediocrity. He said: "Those who till the soil are deep, and those who till the soil are familiar with the tillage." A mediocre person who works hard and plows quickly, and a person who uses skill and skill to keep the land in a straight line does not love his master. He says: "The soup is beautiful, and the money is easy to spread." "Although this text is not a pre-Qin employment contract document, it declares a truth. Not only is the text quite literary, but the language is also somewhat abstract. However, as far as the employment contract is concerned, it can be seen that the above three aspects have been fulfilled. Contains. Although there are not many data from the Qin and Han Dynasties (Western Han Dynasty), based on the comprehensive literature records and archaeological data, the three aspects are complete, and the terminology is roughly the same as that of the Tang Dynasty [36] Therefore, China’s ancient lease (or lease) contracts 〔37〕, it was completed in its own socio-economic environment and legal development history, and has nothing to do with the Roman lease contract. For example, the lease contract is one of the four types of Roman commitment contracts. What is a "promissory contract"? This is not found in the ancient legal terminology developed in China over thousands of years. Let me ask you a question, if China's lease contracts since the Han and Tang Dynasties have completely absorbed the Roman contract legal system, then such important legal terminology has not been introduced or used. Do people feel very strange? This is the crux of the problem.

Through the inspection and analysis of the above two sections, the author’s preliminary conclusion is: first, Hu Fengwen’s assertion cannot be established; secondly. , the contract legal system in China's Han and Tang Dynasties was basically independently developed and improved.