试论宋代诉讼观念的转变

发布时间：2018-03-31 00:23

本文选题：宋代　切入点：诉讼观念　出处：《西南政法大学》2009年硕士论文

【摘要】： 自汉武帝标举“罢黜百家,独尊儒术”之后,崇尚“礼治”的儒家思想成为中国社会几千年来的正统思想,在这种思想之下,人民普遍秉持“贵和持中、贵和尚中”的思想。自秦代以后,受儒家思想的影响,“息讼”成为中国传统文化的总体特征,“无讼”成为中国古代社会的主导价值取向。历代统治者为了专制统治的需要以及信奉儒家思想中向往的“讲信修睦,选贤与能”的宁静和谐的礼制社会而对百姓采取“息讼”的政治方针。纵观传统诉讼观念的形成及流变,我们发现,民族的习惯是一股强大的惯性,它不容辩驳地引领着宋代以前的中国封建社会走向以官府“息讼”,民间“厌讼”为主导的普遍态势。然而,到了宋代,随着社会的发展,生产力的提高,社会纠纷的增多等各种原因,促使民间一改往常,“健讼”之风日渐兴起,不论地区经济发达与否,民间逐渐呈现出一派“健讼”的热闹景象。尤其至宋室南迁,长江流域的经济愈加发展,江南民间财产流转愈发加快,鼠牙雀角,动辄成讼。据后世记载,其手段之多、范围之广,为前朝罕见,这无疑对传统的“厌讼”思想造成了前所未有的冲击。这种一反常态的诉讼观念是宋代区别于前面朝代的最大特点。那么,造成两宋时期民间法律诉讼频仍、直至发展到“健讼”成风的原因有哪些?如果私有制的形成和商品经济的发展是主要原因的话,那么造成这种现象的次要原因有哪些?它们又分别发挥着什么样的作用?笔者就是带着这样的疑问和初衷撰写了这篇论文,并将它分成三部分进行阐述和论证: 第一部分,从客观历史的角度对宋代以前的社会诉讼风气进行总体性概述。本部分首先对诉讼观念的含义作出界定,其次对宋代以前的民间诉讼状况做出有针对性和代表性的介绍,为下文论述宋代诉讼观念的特殊性作出铺垫。第二部分,主要是对两宋时期民风“健讼”的现象从社会阶层角度着手,对统治阶层和百姓阶层的诉讼观念及其表现进行从上到下地具有代表性的描述。本文所指宋之统治阶层包括皇帝和其政府的组成官员——士大夫,他们较之前朝各代更加重视法律、狱讼,也更加关心民间疾苦。从皇帝重视法律,将法律考试设为科举中进士、诸科考试的一项必考内容,到士大夫阶层注重学律、用律,更至从体察民情出发,在处理狱讼之时能够有意识地做到融人情、理法于一处,都体现了宋代统治阶级对待法律不同于其他封建王朝的改变之处。百姓阶层“重利轻义”至争讼成风和自习律令,“性喜讼,家家自为簿书,凡闻人之阴私……皆记之,有讼则取以证”的特点也是前朝所没有出现过的。民间争讼反映出来的人与人之间的关系日益呈现多元化趋势,一方面人们仍然摆脱不了封建伦常所倡导的“患难相恤、礼俗相交”的古训,另一方面在面对日益发展的经济关系时,更加注重自己的利益得失,一旦自身利益受到侵害,争讼就在所难免,像是“惟利是趋,所争之田不满一亩,互争之讼不止数年”诸类的现象,在宋朝尤其是南宋民间是十分普遍的。第三部分,主要是从经济、政府即当政者的统治思想、北宋事功学派的主张、证据学的兴起这四个方面分别对形成“健讼”之风的原因进行了多角度,多层面的挖掘与分析。首先,私有制经济形式的出现和商品经济的发展是发生转变的主要原因和直接原因,也可归纳为“物质前提”;其次,当政者“重视理财”的统治思想是其间接原因,也是其“制度环境”;再次,事功学派反对道学家们的“义理性命”空谈及朱熹“存天理、灭人欲”之思想,主张国家各个阶层的人们应“各务其实而极其所至”,共同“除天下之患,安天下之利”的学说,笔者认为可视作对民间健讼形成的重要原因,也是“理论支持”;最后,随着科学技术的进步,证据制度在两宋时期发生了划时代的变革,除传统的人证外,物证和书证得以普遍使用,法医鉴定等收集证据的专门技能趋于成熟,为健讼风潮的兴起提供了现实的可能性,笔者将其视为科技原因,也可谓之“技术推动”。
[Abstract]:Since the Han Dynasty advocated "deposed 100, only Confucianism", advocating "Rites" of the Confucianism became the orthodox thought China Society for thousands of years, in this kind of thought, people generally uphold the principle of "expensive and in harmony". Since the Qin Dynasty, influenced by Confucianism, "interest litigation" Chinese becomes the general characteristics of the traditional culture, "no litigation" has become the dominant value orientation of ancient society. Chinese rulers to tyranny and yearning for Confucianism "in other countries, those" peaceful and harmonious social etiquette and take "interest litigation" political policy to the people. The formation and transformation. The traditional lawsuit idea we found that national customs is a powerful inertia, it is irrefutable to lead before the Song Dynasty Chinese feudal society to the official "lawsuit", "folk. As a general trend leading litigation ". However, the Song Dynasty, with the development of society, the improvement of productivity, the increase of social disputes and other reasons, the folk changed the usual," fengri disputatiousness "gradually rise, regardless of region economic development or not, people gradually presented a" disputatiousness "lively scene. Especially to the Song Shi migrated to the south, the Yangtze River economic development more and more, the Jiangnan folk property transfer more quickly, easily into litigation. Litigation over trifles, according to later records, which means more scope for the former, it is rare, the traditional" boredom "thought caused a hitherto unknown impact. This was the concept of litigation is the biggest difference in the characteristics of the Song Dynasty of preceding dynasties. Then, by folk legal proceedings during the two Song Dynasties frequently, until the development of" disputatiousness "is what? If private ownership form and commodity economy development. Exhibition is the main reason. What are the secondary causes of this phenomenon? What are their respective functions? The author wrote this thesis with such questions and intentions, and divided it into three parts: to elaborate and demonstrate:
The first part, from an objective historical perspective on the social custom of litigation before the Song Dynasty of the general overview. This part first defines the meaning of the lawsuit idea, litigation status of the folk song before the second make targeted and representative, to pave the way for the particularity of the litigation idea discussed below in Song Dynasty.
The second part is mainly about the folk "two song disputatiousness" phenomenon from the perspective of social class, to has the representative from the description of the concept of litigation and its performance of the ruling class and the class of people. This article refers to the song of the ruling class composed of officials, the emperor and the government officials. They pay more attention to the former than the generation of law, litigation, and more concerned about the sufferings of the people. Pay attention to the law from the emperor, the imperial examination law in the examination, an examination of the compulsory content, to the literati class focus on the study of law, by law, even starting from the people, can consciously do financial and human in the lawsuit process, cut into one place, reflects the ruling class to law is different from other feudal dynasties changed. People class "materialistic" to dispute rampant and study law, "like litigation, For every book, every famous person. All secrets, have taken to permit litigation is the former does not appear too. The relationship between people and people dispute reflected the increasingly diversified trend, on the one hand, people still can not get rid of the feudal principles advocated by the "trouble phase shirts" the old customs intersect, on the other hand, in the face of a growing economic relationship, pay more attention to their own interests, once their interests are infringed, the dispute is like "Weilishiqu, can hardly be avoided, for the field of less than one mu, more than a few years of Litigation --" the phenomenon in the song Dynasty especially the folk of Southern Song Dynasty is very common.
The third part is mainly from the economy, the government is the dominant ideology of Northern Song Dynasty rulers, utilitarian school claims, evidence of the rise of the study of the four aspects of the multi angle on the forming reasons of the tendency of "disputartiousness", mining and multidimensional analysis. Firstly, the development of private ownership economy form and the commodity economy is the main reason for the change and direct reasons, can be summarized as "material premise"; secondly, the rulers "attention management" rule is the indirect cause, but also the "institutional environment"; thirdly, utilitarian school objected their "giri life" talk and Zhu Xi "thought of justice, and destroying human desires", people of all classes should advocate the country "and the service actually extremely to the" common "in the world of suffering, the world of" the theory, I think the most important reason on the formation of disputartiousness visual folk, but also The theory of "support"; finally, with the progress of science and technology, the evidence system has epoch-making change in the two Song Dynasties, in addition to the traditional evidence, physical evidence and documentary evidence to the widespread use of expertise of forensic identification and collection of evidence tends to mature, to provide a realistic possibility for disputartiousness wave of the rise of the author as the science and technology, it can also be defined as "technology driven".

【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D929;D925

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