从“拾得遗失物”立法看传统对现实的批判

Abstract

Aiming at revealing the logic between the legal regulations and their moral connotation, this article has reviewed the relevant provisions on the lost-and-found objects in the law from the Tang Dynasty to the Qing Dynasty, as well as the provisions of the Republic of China. Back to the Tang Dynasty, the lost-and-found objects should be turned over to the authorities in accordance with a strict procedure designed for protecting the ownership of the objects. While in the Ming Dynasty, the relevant provisions has changed, it states that the ownership of the lost-and-found objects could be claimed by the finders after the period of public notice, who can also claim recompense accordingly. The legislation of the lost property system in the Ming Dynasty has such a profound influence on the later age that the similar provisions have lasted till the Republic of China. However, the contemporary Property Law of PRC has adopted the legislative approaches that the ownership of the lost property being taken by the authorities, which have a wide difference from the original legal traditions. By comparing the ancient and contemporary Property Law of China, the author points out that the authorities should draw on the scientific experience of ancient legislation approaches for the sake of the protection for the ownership, moreover, it may help to eliminate the internal logical contradictions between the provisions and pursue the balance of morality and law.