宋代“健讼”原因研究

发布时间：2018-04-20 08:05

本文选题：无讼 + 健讼　；参考：《郑州大学》2009年硕士论文

【摘要】：诉讼是一种复杂的社会现象,它必定会受到一定的政治、经济、文化等因素的影响。中国传统的经济、社会、思想文化与法律制度使大多数学者都认为中国古代的诉讼价值多倾向于“无讼”,传统诉讼文化也以追求“无讼”为价值取向。事实上,“无讼”更多的只是代表了统治者阶层的一种治国理想和理念,这种“无讼”理想是不可能实现的,其原因就在于诉讼是社会发展过程中必然要发生的一种社会现象,在古代中国,即使“无讼”、“贱讼”、“惧讼”的观念占据主导位置,但争讼的风气和健讼的现象在各个朝代仍有不同程度的存在,致使“健讼”现象产生的各种契机一旦出现,诉讼之风可谓一发而不可收拾。宋代是一个具有强烈时代特征的时期,也是中国历史上为数不多的任法而治的一个朝代。在以“无讼”为价值取向的中国古代社会历史进程中,宋代却出现了受官方肯定的健讼现象,而且卷入争讼的社会角色涉及了各行各业各阶层。此外,两宋的诉讼双方当事人许多又具有血缘关系,兄弟之争、叔侄之争,甚至母子之争、父子互讼等现象也常有发生,《名公书判清明集》卷四至卷九的“户婚”门就记载了大量此类的诉讼案例。这种突破儒家亲情伦理的争讼被官方认可是非常值得注意与思考的问题。争讼,实际上是人们用法律条文维护自身权益的一种表现形式,宋代“健讼”现象的出现与持续,某种程度表明传统法制发展到宋代,明显注重了对民间财产和民众利益的规制甚至保护。民事诉讼主体范围的扩大,诉讼参与人数量的增多,使得两宋的民事法律规范相对增多由此产生了一些相对明确,且较为详备的保护财产所有权和规范交易的法律规范。本文以宋代社会背景为研讨视角,通过对宋代政治经济与法律制度发展状况的考察,结合两宋社会较为凸现的功利主义、等贵贱思想等,力求从中探寻宋代健讼现象形成的各种关联因素,并在考察这些影响诉讼成立因素的基础上,为当代我国的诉讼法制建设找寻借鉴。
[Abstract]:Litigation is a complicated social phenomenon, which is bound to be influenced by political, economic and cultural factors. Chinese traditional economic, social, ideological, cultural and legal systems make most scholars think that the value of litigation in ancient China tends to be "no lawsuit", and the traditional litigation culture also takes the pursuit of "no lawsuit" as the value orientation. As a matter of fact, "no litigation" is more representative of the ideal and idea of governing the country of the ruling class. This ideal of "no litigation" is impossible to realize. The reason is that litigation is a social phenomenon that will inevitably occur in the course of social development. In ancient China, even though the concepts of "no litigation", "low litigation" and "fear of litigation" occupied the dominant position, the atmosphere of litigation and the phenomenon of healthy litigation still existed in various dynasties to varying degrees. Once all kinds of opportunities arise, the litigation wind is out of hand. Song Dynasty is a period with strong characteristics of the times, but also one of the few dynasties in Chinese history. In the process of ancient Chinese society with "no lawsuit" as its value orientation, the social role involved in litigation involved in all kinds of trades and strata appeared in the Song Dynasty, which was affirmed by the government. In addition, many of the litigants of the two Song dynasties were related by blood, brothers, nieces and even mothers and sons. The phenomenon of paternity and son litigations is also common. A large number of cases of this kind are recorded in the door of "household marriage" between volume four and volume nine. This breakthrough of Confucian kinship ethics by the official recognition of the issue is very worthy of attention and thinking. Litigation, in fact, is a form of expression in which people defend their rights and interests with legal provisions. The appearance and continuation of the phenomenon of "vigorous litigation" in the Song Dynasty indicates to some extent that the traditional legal system has developed to the Song Dynasty. Obvious attention to the civil property and the interests of the public regulation and even protection. With the expansion of the scope of the subject of civil action and the increase of the number of participants in the litigation, the relative increase in the civil legal norms of the two Song dynasties has resulted in some relatively clear and detailed legal norms for the protection of property ownership and the regulation of transactions. From the angle of view of the social background of the Song Dynasty, through the investigation of the development of the political economy and the legal system in the Song Dynasty, this paper combines the utilitarianism, the noble and the mean thoughts, which are more prominent in the Song Dynasty, and so on. This paper tries to explore the various related factors of litigation phenomenon in Song Dynasty, and on the basis of investigating these factors which affect the establishment of litigation, to seek for reference for the construction of litigation legal system in contemporary China.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D929;D925

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