“分家析產”或“遺產繼承”：以大理院民事判決為中心的考察(1912～1928)

“Household Division” or “Inheritance Succession”: a Study of Civil Judgments of the Grand Council of Justice (1912~1928)

分家析產是傳統中國財產傳遞的主要模式，與西方的遺產繼承是不相同的兩種制度。清末民初引進西方法律時，外來的遺產繼承與內生的分家析產發生交會，並有衝突與融合。本文以民初的大理院為研究對象，進行分家析產的司法審判實務的考察，以還原由大理院判例所構建的分家析產規則。自成文法而論，中國在此時期開始自傳統的分家析產向近代的遺產繼承演變，1931年的國民政府民法典完全實行基於個人主義的繼承制度，根植於同居共財家庭的分家析產制度默默地退出國家法。但民初大理院僅僅將分家析產的法律與習慣體系化，並適度地採納西方的法律精神，傳統的分家析產制度並沒有被近代的遺產繼承制度所取代，反而因此延續了中國固有習慣及傳統法律的生命力。

Family division and property distribution is the main pattern of transmission of family property from generation to generation in traditional China which is different from the inheritance succession system in the west. When western laws were introduced into China during the Late Qing Dynasty and the early Republic of China, the foreign inheritance system started to blend with the locally practices of family division and property distribution, and have the conflicts and interfusion between the two. This paper focuses on the Grand Council of Justice of the early Republic of China, and makes investigations into judicial judgment practices about family division and property distribution, in order to restore the family division and property distribution rules constructed by the cases of the Grand Council of Justice. In the matter of written laws, China was starting witnessing the transition from traditional family division and property distribution practices to the modern inheritance succession system. The civil code of the Republic of China (1931) was absolutely enforcing an inheritance system based on individualism, leaving the family division and property distribution system, tooted in the family system of co-residence and common property, fading out silently from national laws. But the Grand Council of Justice of the early Republic of China, however, simply systematized laws and practices of the institution of household division and then moderately adopted the legal spirit originating from the western world. The traditional family division and property distribution system was not replaced by the modern inheritance succession system. Instead, the Grand Council of Justice was actually an attempt to continue the vitality of local practices and traditional laws of China.