宋代 家族과 財産相續에 관한 硏究 = (A) Study of Inheritance and Family in Song China

다국어 초록 (Multilingual Abstract)

Family 家 in China was a blood-related unit that evolved around the ownership of material assets and economic activities. Unlike in Confucianism where jia was a concept with an ambiguous definition that was to continue on indefinitely, it was in reality a fragile unit that could survive only when the family assets-human and materal resources-were available.
Song saw the growth of the peasant-proprietor system through the Tang-Song Reformation period, which prompted the numerous peasant farmers to grow to be the owners of private lands. They were relatively free from the discrimination from the social stratification and promoted themselves to a class who formed economically independent families that could inherit its assets to the descendants. With the increasing opportunities for economic activities and with the growing social mobility that accompanied the growth of economy, the economic capability of the family became the major interest. This expansion of the private property owning class and the emphasis on the economic capability laid the important foundation for the development of the Song's legal system concerning the inheritance.
Although the founding Codes of Song rooted on ruling class' Confucian principles were designed toward the paternal large family system, it is found in this study, through the study on the inheritance system, that the individual independence of the small family was more important and that the bond inside the paternal lineage was not so strong. Even under the "property-sharing" family as mandated by the code, sons were guaranteed the equal claim to the inheritance and the private property of the conjugal family of each son was accepted.. Also, Song provided more opportunities for economic activities, which brought in the expanded range of legally recognized private properties. Also, the decreased demand for co-works among sons and the conflict coming from the disparity of their economic capabilities forced the early division of the family property during Song. This encouraged the wider acceptance of the principle of the direct-lineal inheritance. With the decreasing family size, the independence of conjugal small family was emphasized while the bond among collateral relations decreased.
With the increasing number of small families came the increased chance of any of them to become a cut-off family, which produced the need to establish elaborate inheritance laws to apply to those families. It was in line with the Confucian principles that the absence of a son constituted the sufficient condition to declare a household cut-off irregardless of the existences of other co-dwellers. The Song laws took into consideration the range and the relation of the contemporary family. First of all, the right of the property owner preceeded over any other "cut-off household" laws. The bequest law recognized inheritance claim to relatives closer than the "three-month mourning degree □麻親" and the daughter, the uxorilocal son-in-law, the concubine and sisters were most of the beneficiaries. In the absence of a will, the cut-off inheritance laws defined the beneficiary mostly around co-dwellers as the daughter, the uxorilocal son-in-law, and the adopted son while the paternal collateral relations were removed from the list. Toward the end of Southern Song, a certain amount of claim was recognized to the successor who was named by the close relatives posthumously, yet the share was no larger than that of the daughter.
All the characteristics of the Song inheritance laws such as property division, transition toward the small family and the weakening of the paternal lineage can also be observed in investigating the detailed inheritance right of each member of the family.
The adopted son was given an appropriate status and claim as the member of the family corresponding to such things as his role, legality and the date of adoption. The codes and the Confucian guideline recognized and treated the sacrifice-ritual qualified adopted son of same-lineage to the equal of the natural son, and the different-surname adopted son as a mere foster son. In Song, however, whether he was adopted posthumously or not was more important than the legal terms involving the last name in determining the inheritance claim. The heir posthumously appointed by the elder of the paternal relations had the limited claim as defined by the cut-off household code, while the one adopted by the parents was given the full claim to the inheritance in spite of the differing surname. The parent has the right to select the heir, which preceeded the right to name the heir by the leader of the close paternal relations. Most differing-surname adoptees were related to the affinal relations and foster sons were the ones who accompanied the re-marrying wives and thus were also related to maternal relations. There are numerous rulings regarding the cases where the heir was not named while the foster son took care of the parents in their old age and it is noteworthy that the foster son was given a limited legal claim, though restricted to the case of the cut-off family, to the family inheritance.
The expansion of women's property right, especially the inheritance claim of the daughter, should find its link in the close relationship with the maternal relations. With the paternal bond weakened, the each conjugal family would have found the need and the comfort of a close relationship through maternal relatives, and one could have felt easier in increasing the dowry for the daughter. It is obvious that the daughter's claim for the inheritance was largest of all other imperial periods. They called it the wedding expense, yet its real value and her share of the inheritance far exceeded the conventional amount for the dowry, and in Southern Song, there was a legislation that explicitly defined her share to one half of the son's.
One may also claim that the increased share of the daughter prompted the establishment and the independence of the small family. The dowry played a vital role in promoting the division of the household property and the branching out a new conjugal small family by playing a crucial role in producing the disparity in her husband's economic wealth among his brothers. The lineage by blood in Song was pretty much equally shared between the maternal and the paternal relations, hence one can claim the bondage to the maternal relations by marriage was a close one.
The uxorilocal son-in-law was another symbol of a maternal relationship much as the differing-surname adopted son or the foster son was arranged by the female member of the family. Adopting an uxorilocal son-in-law through the daughter in the household without the son was the second best alternative to adopting the son to succeed the household business and to carry the family on. Entrusting the care for the parents in their old age to their daughter and her husband and bequesting the assets to her children could be a better choice than relying on an adopted son from a distant paternal lineage. The uxorilocal son-in-law system was the result of integration of factors such as the independence of the conjugal family, the weakening of the bond from the paternal lineage and the increased role of the woman in the family.
Song Chinese neither were stubborn observers of the Confucian family doctrine that a son should be adopted from the same-surname relations to succeed the sacrificial rite nor displayed strong adhesion to the idea of preserving the property inside the paternal lineage. The increased cases of funeral services according to Buddhist or Taoist practice could also have helped with the weakening of the paternal lineage centered family identity. Although Song saw the resurrection of the paternal order and the Neo-confucianism that emphasized the importance of the sacrificial rites for the ancestor, the family ideal according to those Neo-confucianists did not play a vital role in the formation of family system as they did in the case of the inheritance system. The ideal of the paternal lineage as introduced in Song eventually grew to take the center stage in Ming and Qing China to form a paternal lineage system through the process of restoring Chinese cultural tradition after going through the conquest and the domination by alien cultures. The inheritance system also underwent gradual transformation to the proximity of the guideline in line with Confucianism, resulting in the limitation of the inheritance claim by the daughter and the uxorilocal son-in-law and the increased property claim of the paternal relations owing to the reinforced requirements for the same-surname adopted son.
In contrast to the paternal lineage centered family under the large family system developed in the pre-Song period, the same ideal lost considerable ground in Song China with social changes and with the increasing number of new independent conjugal families. The paternal lineage system as developed in the later Ming and Qing China recognized each family as an independent economic entity and contained these units under its umbrella in a loose blood lineage. The families in Song can be characterized as to be the transitory ones in the course of changes in the long Chinese family history.

목차 (Table of Contents)

• 目次 = 1
• 緖論 = 1
• 1. 硏究動向과 問題提起 = 1
• 2. 論點과 硏究方向 = 7
• 제1부 相續制 類型과 家族樣態 = 17
• 제1장 家族槪念과 財産 = 18
• 1. ‘家’의 槪念 = 18
• 2. ‘共財’ 家産의 性格 = 24
• 제2장 分割相續의 原則과 變化 = 38
• 1. 家産分割의 理由 = 39
• 2. 家産分割의 節次 = 51
• 3. 家産分割의 諸原則 = 55
• 제3장 遺囑相續의 性格과 意義 = 73
• 1. 遺囑慣行과 法定遺囑 = 75
• 2. 法定遺囑의 要件과 制限 = 84
• 3. 遺囑相續의 目的과 意義 = 92
• 제4장 ‘戶絶’相續의 變化와 그 特性 = 99
• 1. 戶絶의 條件 = 101
• 2. 戶絶財産法의 變化 = 105
• 제1부 小結 = 124
• 제2부 非男系親 家族의 位相과 相續權 = 127
• 제1장 養子의 條件과 相續權 = 128
• 1. 嗣子와 義子 = 130
• 2. 同宗養子와 異姓養子 = 138
• 3. 生前養子와 死後養子 = 145
• 제2장 딸 相續權과 그 認識의 變化 = 156
• 1. 지참금을 통한 相續 = 158
• 2. 男女分法에 의한 相續 = 167
• 3. 딸 相續法 變化의 意味 = 177
• 제3장 贅壻의 役割과 相續權 = 185
• 1. 贅壻婚의 實態 = 186
• 2. 贅壻의 役割 = 192
• 3. 贅壻의 相續權 = 198
• 제2부 小結 = 208
• 結論 = 212
• 參考文獻 = 222
• Abstract = 231