청ㆍ민국시기 산서지역의 分家와 상속 현실― 分書를 중심으로 ― (The family division and its reality in Shanxi province during the Qing and Republican Period - Focused on the fenjia contract documents -)

서지정보

· 발행기관 : 동양사학회
· 수록지 정보 : 동양사학연구 / 140호 / 453 ~ 493페이지
· 저자명 : 손승희

초록

This research based on an analysis of family division(fenjia) contract documents, examines the family division and the reality of inheritance among ordinary families in Qing and Republican Period. This research focuses on how the ways the principle of equal inheritance for brothers was applied, and the change of fenjia documents in their content after the establishment of Civil Law, on the other.
The property of family was regarded as communal property, not individual property, in traditional Chinese society, and ‘fenjia’ entailed the division of family property to which male siblings were entitled. ‘Fenjia’ taking place in the form of ‘fenfang’ or household division resulted in hundreds or thousands genealogical branches of original family, all of which formed a lineage group. The lineage and the notion of ancestor worship had close relation, which is directly mediated by the practice of fenjia.
The custom of equal inheritance was initially legislated during the Tang Dynasty and lasted in court form during the next Dynasty. The rule of equal inheritance operated not as civil custom any longer but as state statutory code that absorbed civil practices. Therefore, each family tried to abide it, and it seemed to have been basically obedient. Despite the rule of equal inheritance, however, the actual practice of inheritance sometimes also involved various changed examples.
For example, the families of Shanxi merchant(jinshang) had a tendency to concentrate their inheritance property to one sibling, unlike the surface rules of equal inheritance. The division of the store is delayed as much as possible for the business stable management and capital accumulation, but the store was divided also in order to promote reconciliation with the family and to prevent future conflicts.
The fenjia contract was also made for other purposes than property division, such as land transaction, property certification, and the adjustment of unequal division. This is because it was a powerful proof of the property rights of each family. Therefore, it was necessary for the fenjia contract documents to establish legitimacy and fairness, and the role of its was to prevent disputes from arising due to the division of property.
The rule of equal inheritance began to change considerably when the modern Civil Law was effective. In the Civil Law, the inheritance right of female sibling was acknowledged due to the heightened notion of gender equality, and the property inheritance right of family successor was not guaranteed any more because the succession of family and that of property were separated.
In addition, the examination of the influence of the Civil Law on fenjia documents shows there was no significant difference between the ones from the Qing periods and the ones from the late Republican period in their form and content. From this time on, the practices of fenjia was no longer maintained by state law but by old customs.
The practices of fenjia with equal inheritance that had lasted for several thousands years continued to have influence on the spiritual world and actual lives of ordinary people. In the case of a lawsuit filed by a daughter, the inheritance of the daughter was granted, but otherwise heritage continued in the traditional way. Even if there were minor changes after the enactment of the Civil Law, this change in awareness was not spontaneously specified in the fenjia contract documents.

영어초록

This research based on an analysis of family division(fenjia) contract documents, examines the family division and the reality of inheritance among ordinary families in Qing and Republican Period. This research focuses on how the ways the principle of equal inheritance for brothers was applied, and the change of fenjia documents in their content after the establishment of Civil Law, on the other.
The property of family was regarded as communal property, not individual property, in traditional Chinese society, and ‘fenjia’ entailed the division of family property to which male siblings were entitled. ‘Fenjia’ taking place in the form of ‘fenfang’ or household division resulted in hundreds or thousands genealogical branches of original family, all of which formed a lineage group. The lineage and the notion of ancestor worship had close relation, which is directly mediated by the practice of fenjia.
The custom of equal inheritance was initially legislated during the Tang Dynasty and lasted in court form during the next Dynasty. The rule of equal inheritance operated not as civil custom any longer but as state statutory code that absorbed civil practices. Therefore, each family tried to abide it, and it seemed to have been basically obedient. Despite the rule of equal inheritance, however, the actual practice of inheritance sometimes also involved various changed examples.
For example, the families of Shanxi merchant(jinshang) had a tendency to concentrate their inheritance property to one sibling, unlike the surface rules of equal inheritance. The division of the store is delayed as much as possible for the business stable management and capital accumulation, but the store was divided also in order to promote reconciliation with the family and to prevent future conflicts.
The fenjia contract was also made for other purposes than property division, such as land transaction, property certification, and the adjustment of unequal division. This is because it was a powerful proof of the property rights of each family. Therefore, it was necessary for the fenjia contract documents to establish legitimacy and fairness, and the role of its was to prevent disputes from arising due to the division of property.
The rule of equal inheritance began to change considerably when the modern Civil Law was effective. In the Civil Law, the inheritance right of female sibling was acknowledged due to the heightened notion of gender equality, and the property inheritance right of family successor was not guaranteed any more because the succession of family and that of property were separated.
In addition, the examination of the influence of the Civil Law on fenjia documents shows there was no significant difference between the ones from the Qing periods and the ones from the late Republican period in their form and content. From this time on, the practices of fenjia was no longer maintained by state law but by old customs.
The practices of fenjia with equal inheritance that had lasted for several thousands years continued to have influence on the spiritual world and actual lives of ordinary people. In the case of a lawsuit filed by a daughter, the inheritance of the daughter was granted, but otherwise heritage continued in the traditional way. Even if there were minor changes after the enactment of the Civil Law, this change in awareness was not spontaneously specified in the fenjia contract documents.

참고자료

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