宋代讼学和讼师及其对州县司法审判的影响研究

发布时间：2018-03-04 09:15

本文选题：宋代　切入点：讼学　出处：《湘潭大学》2011年硕士论文　论文类型：学位论文

【摘要】：宋代处以中国封建社会重要的变革与转型时期。随着私有商品经济的深入发展、财产流转关系的复杂化和社会成员之间经济利益的多元化,宋代法律的复杂化、理性化与形式化与汉唐相较则大为增加。因应民众对法律的广泛需求,宋代民间出现了教习词讼知识和诉讼技巧的讼学。与此同时,为当事人撰写词状、指点诉讼、收取诉讼费用、以法律为生业的职业讼师群体亦纷纷登上宋代的司法舞台。在讼学和讼师直接影响下,宋代民间兴起了好讼风尚。讼学与讼师既是宋代民众对法律知识的客观需求与法律意识增强的重要体现,又是宋代法律制度近世化转型的重要标志。宋代讼师们通晓法律,熟悉行政司法流程,擅长法庭辩论,法律水准较高；然而,因其构成来源鱼龙混杂,致使其职业道德良莠不齐。其中的部分讼师教唆词讼以渔利当事人的钱财；制造伪证、反复妄讼、甚至勾结胥吏与豪强而把持州县狱讼,严重的冲击了州县司法秩序的正常运作,极大的挑战了宋代官方正统的无讼理想价值观。职是之故,在以官方儒学主流意识形态自居的宋代士大夫法官们的眼中,宋代讼学与讼师缺乏存在的合理性、合法性与正当性。士大夫法官们重点打压与规制讼师的教唆、妄诉诬告与事不干己等行为；打压的结果则严重阻滞了宋代民间法律服务行业的正常发展,法官与讼师难以走向现代法律职业共同体的道路。然而,纵观两宋史料,宋代士大夫法官们们亦有对讼学、讼师的融合和回应。在讼学与讼师的直接刺激之下,宋代一些务实的士大夫法官们不仅承认代笔人和写状钞书铺户的合法地位,而且非常重视狱讼；民间讼学与讼师的崛起亦促使越诉、断由等特色司法制度在南宋州县司法程序和审判中广泛使用；最后,在民间习律学讼风潮影响与讼师的制约下,集儒学、吏学和法学于一身的宋代的士大夫法官们深刻认识到：单纯依靠疏阔的、缺乏程序操作的道德与情理,已经难以有效化解民间复杂的财产纠纷；只有通过司法程序、司法公正与依法判决方可彻底化解财产争讼。申言之,情理在民事判决中的使用是以法律为基础,情理难以颠覆法律；宋代民事司法审判是以证据确定法律事实的依法而断,换言之,宋代民事判决具有确定性和可预测性。抛开社会形态而言,社会转型期的当代中国与历史上处以巨变时期的宋代有着惊人的相似之处。本论题的研究,为我们如何在法律的框架范围内处理好法官与律师之间的职业共同体关系；以及法院通过确定性的司法判决以有效化解错综复杂的财产纠纷等诸多方面,定能提供可资借鉴的历史经验与教训。
[Abstract]:The Song Dynasty imposed an important reform and transformation period on the feudal society of China. With the further development of the private commodity economy, the complication of the property circulation relationship and the diversification of the economic interests among the members of the society, the law of the Song Dynasty became more complicated. Compared with the Han and Tang dynasties, rationalization and formalization greatly increased. In response to the widespread demand of the public for the law, the Song Dynasty folk appeared the science of litigation in the knowledge of teaching and litigation. At the same time, they wrote the words for the parties and pointed out the litigation. As a result of the collection of litigation fees, the legal community of professional advocates also stepped onto the judicial stage of the Song Dynasty. Under the direct influence of the science of advocacy and the advocates, In the Song Dynasty, the folk custom of good litigation arose. The theory and division of litigation are not only the important embodiment of the people's objective demand for legal knowledge and the enhancement of legal consciousness in Song Dynasty, but also the important symbol of the transformation of the legal system of Song Dynasty in modern times. In the Song Dynasty, they knew the law, were familiar with the administrative and judicial process, were good at court debate, and had a high standard of law. However, because of its mixed composition, Some of them abetted their words to profit the parties' money; they made perjury, repeatedly sued, and even colluded with petty officials and powerful officials to control state and county prison cases. Seriously impacted the normal operation of the state and county judicial order, greatly challenged the Song Dynasty official orthodoxy of the ideal values of non-litigation. Therefore, in the eyes of the judges of the Song Dynasty, who regarded themselves as the mainstream ideology of the official Confucianism, In the Song Dynasty, there was a lack of rationality, legitimacy and legitimacy of the existence of the litigators and the judges of the literati and officials mainly suppressed and regulated the instigation of the litigants, and falsely accused of falsely accusing and not doing what they had done. The result of suppression seriously hindered the normal development of the civil legal service industry in Song Dynasty, and it was difficult for judges and advocates to move to the road of modern legal profession community. However, throughout the history of the two Song dynasties, the judges of the Song Dynasty also had a mixture of and responses to the science of litigation and the division of advocacy, which was directly stimulated by the science of litigation and the advocate. In the Song Dynasty, some practical literati judges not only recognized the legal status of the scribe and the scribbler, but also attached great importance to the prison litigation. The judicial system with such characteristics as the rule of law is widely used in the judicial procedure and trial of the Southern Song prefectures. Finally, under the influence of the folk law learning and the influence of the litigation division, the Confucian school is gathered. The literati judges of the Song Dynasty, who were both a scholar and a scholar of law, realized that it was difficult to resolve the complex civil property disputes only through judicial procedures because of the lack of morality and reason of relying solely on the wide range and lack of procedural operation. The use of reason in civil judgment is based on the law, and it is difficult to subvert the law. In other words, the Song Dynasty civil judgment has certainty and predictability. Apart from the social formation, the contemporary China in the period of social transformation has striking similarities with the Song Dynasty, which has been undergoing great changes in history. For how to deal with the professional community relationship between judges and lawyers within the framework of the law, and how to resolve the complex property disputes effectively by the court through the deterministic judicial decision, etc. It is certain to provide historical experience and lessons that can be used for reference.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D929;D926.5

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