「業憑契管」？清代臺灣土地業主權與訴訟文化的分析

'Deed owner, land owner?' Land Property Rights and Litigation Culture in Qing Taiwan

本文討論清代臺灣業主權維護體制的內涵，並分析清代官員如何審理土地業主權的訴訟案件。首先，從制度性的面向，說明清代臺灣「官方」（魚鱗圖冊、過戶割糧、稅契與契尾、執照、丈單等行政體制與文書）與「民間」（給墾、買賣、典當、胎借、鬮書、歸管與合股等民間體制與契據）兩類土地業主權維護體制的歷史內涵，以及其在運作上的侷限性。其次，討論淡新檔案中40個控案的文書內容，說明清代民人如何利用訴訟制度來維護自己的土地業主權，並討論清代官員在處理這類案件時的審理邏輯。本文指出由於清代土地業主權維護體制的內在闕漏，使得清代官員面對複雜的土地爭界案件時，未必完全依照業憑契管的原則來裁斷糾紛；相反的，常基於地方治理穩定的整體考量，刻意操弄言說表達與實效考量的二元性，逕自合法化不具合法管業契據、但已實際管業者的業主權。

This article discusses the land property rights system in Qing Taiwan and analyzes how lawsuits related to land property rights were adjudicated. First, this article traces the development of the 'government/official' land property rights system with reference to fish-scale registers, title registers, land tax certificates, stamped deeds, official licenses and land documents. In addition, the 'non-government/unofficial' land property rights system widely practiced among the general population is examined in the light of land documents concerning use, reclamation, sale and purchase, mortgage, allotment among family members and joint ownership. The operation of these two systems and their drawbacks are also discussed. Second, this article analyzes 40 lawsuits in the Dan-Xing Archives to illustrate how commoners maintained their property rights through the litigation system and how legal officials handled such cases. As pointed out earlier, both the government/official and non-government/unofficial land property rights systems had many inherent limitations. Therefore, land ownership disputes were not always adjudicated according to the principle that whoever owned the title deed owned the land. Instead, stability in local governance was the prior consideration. The court often manipulated deliberately the duality between narrative representation and practical consideration, and ruled such cases in favor of the one who managed and controlled the plot of land in practice rather than the one who in fact possessed the title deed.