论中国传统“无讼”思想及其当代价值

发布时间：2018-08-07 16:44

【摘要】：中国传统文化博大精深，“无讼”思想是其中的一枝奇葩。中国传统“无讼”思想诞生于百家争鸣的春秋战国时代，儒、道、墨、法等流派相互影响，各自形成了对“无讼”的认识。随着汉武帝的“罢黜百家，独尊儒术”，吸收了其他流派思想精华的儒家学说成为封建社会的正统思想，“无讼”成为中国传统法律文化的一个重要特征。作为中国传统法律文化的主导性价值取向，传统“无讼”思想对中国法治乃至中国社会的发展产生了深远的影响。“无讼”思想的产生有其深刻的经济、政治、社会和思想文化根源，并在中国的历史上起过积极的和消极的影响。如何对待这一传统法律思想，是摆在我们面前的现实而又迫切的问题。曾经，对“无讼”理想的过度追求阻碍了法治在中国的发展，抑制了人民的权利，带来了严重的司法腐败，是我国近现代社会发展停滞的重要因素之一。但是，当前新形势下又出现了严重的文化无序、道德失范等一系列社会问题。中国传统法律文化中的“无讼”思想所蕴含的调解制度与和谐之道恰恰可以有效的规范和解决这些社会问题。以调解制度为核心的现代ADR是纠纷解决的不可分割的组成部分，有时甚至发挥着更加重要而广泛的影响。而且，“无讼”思想在防止“法律万能主义”、保障社会的顺利转型等方面也起着不可替代的重要作用。构建社会主义和谐社会是我们国家的战略目标，“无讼”所追求的境界正是社会的和谐安定有序。本文通过系统分析“无讼”思想及其成因、影响等方面，揭示“无讼”思想的现代价值以及如何实现创造性转换，，从而为我国的社会主义法治现代化建设服务，促进社会主义社会的和谐发展。
[Abstract]:Chinese traditional culture is extensive and profound, and the idea of "no lawsuit" is one of the wonderful flowers. The traditional Chinese thought of "no litigation" was born in the warring States period of the Spring and Autumn period, in which Confucianism, Taoism, Mohism and law influenced each other and formed their own understanding of "no litigation". Along with Emperor Wu's "ousting hundred schools, respecting Confucianism alone", the Confucian theory that absorbed the essence of other schools of thought became the orthodox thought of feudal society, and "no lawsuit" became an important feature of Chinese traditional legal culture. As the dominant value orientation of Chinese traditional legal culture, the traditional idea of "no lawsuit" has exerted a profound influence on the development of China's rule of law and even the development of Chinese society. The emergence of the idea of "no lawsuit" has its profound economic, political, social and ideological and cultural roots, and has played a positive and negative role in the history of China. How to treat this traditional legal thought is a realistic and urgent problem in front of us. Once upon a time, the excessive pursuit of the ideal of "no lawsuit" hindered the development of the rule of law in China, restrained the rights of the people, brought serious judicial corruption, and was one of the important factors for the stagnation of the development of our modern society. However, under the present new situation, a series of social problems such as cultural disorder and moral anomie appear again. The mediation system and the way of harmony contained in the thought of "no lawsuit" in Chinese traditional legal culture can effectively regulate and solve these social problems. Modern ADR, with mediation system as its core, is an integral part of dispute resolution and sometimes plays a more important and extensive role. Moreover, the idea of "no lawsuit" also plays an irreplaceable role in preventing "legal omnipotism" and ensuring the smooth transformation of society. Constructing a harmonious socialist society is the strategic goal of our country. Through systematic analysis of the thought of "no lawsuit" and its causes and influences, this paper reveals the modern value of the thought of "no lawsuit" and how to realize the creative transformation, so as to serve the modernization of socialist rule of law in our country. Promote the harmonious development of socialist society.
【学位授予单位】：北京工商大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D909.2

【参考文献】