史学雑誌
Online ISSN : 2424-2616
Print ISSN : 0018-2478
ISSN-L : 0018-2478
鎌倉幕府の財産相続法
小瀬 玄士
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ジャーナル フリー

2012 年 121 巻 7 号 p. 1207-1243

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This article, which critically follows along the lines of Nakada Kaoru's monumental work Chusei no zaisan sozoku-ho 中世の財産相続法 (The inheritance of wealth in medieval times), is an attempt to clarify the legal provisions concerning inheritance specified by the Kamakura Bakufu. In particular, the author examines the root problem of the disposal of wealth (shobun 処分), which he finds contrary to Nakada's understanding, to cover everything that the inheritor (the original owner) is allowed to transfer of his own free choice and is thus not required to divulge to his heirs; and whenever the owner's wishes towards the inheritance of his estate are recognized in any way shape or form, the right of "shobun" is established based on that recognition. Furthermore, the fact that the Bakufu's courts of appeal defined any document containing the term "yuzuri 譲" to be a last will and testament (yuzurijo 譲状) was not as strict a provision as Nakada indicates. However, in legal disputes where there were conflicting documents establishing the free wishes of the original owner, a bona-fide "yuzurijo" was generally regarded as the most authoritative evidence in deciding the case. On the other hand, if the free wishes of the original owner had not been recognized, the property in question would be defined as "yet to be disposed"(mi-shobun 未処分) and it would then be distributed by the owner's widow, his children,etc.; but if no arrangements had been made, the Bakufu would conduct the distribution. On the point of giving the document "yuzurijo" the highest legal authority, the author finds examples in which such was not the case; and as to the circumstances, he cites the "Original Ownership Restoration Provisions (honshu-kogyorei 本主興行令)" of the Shoou Era (1288-93), which strengthened the rights of original owners. This act recognized "yuzurijo"-like provisions for heirs contained in the document called "imashimejo 誡状" (advice to posterity) of original owners and formed the basis for strengthening that document's legal authority. "Provisions" was an epoch-making legislative act 1) protecting original ownership rights, 2) providing the opportunity for proclamations made by original owners, which were no more than family "norms," to generally function as binding "laws" and 3) laid the basis for the Bakufu's "act of virtuous governance" (tokuseirei 徳政令) of 1297, which ordered that property transferred (by sale or pawn) in lieu of debt had to be eventually returned to its original owner.

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© 2012 公益財団法人 史学会
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