清代讼师法律地位研究

发布时间：2018-05-16 23:13

本文选题：讼师 + 息讼　；参考：《安徽大学》2010年硕士论文

【摘要】： 在清代,由于受传统“息讼”思想的影响,普通民众为维护自己的财产或权利而提起的诉讼被视为顽劣不化、世风日下。而对于教唆和帮助民众诉讼的讼师,更是被斥为“讼棍”、“好事之徒”,政治、社会地位都极为低下,法律更是对讼师进行百般限制。相比于前朝各代,随着社会变革的发展和思想的开放,普通民众权利意识得到加强,各地的诉讼风气不断兴盛,这与国家“无讼”的指导思想格格不入,从而官府对讼师的限制也更为严密,甚至出现了专门处罚讼师的法律,这是前所未有的。《大清律例》中专门定有“教唆词讼罪”,并在律文后附有12条例文,其内容都是以严厉限制讼师活动作为立法的宗旨,构成了一套较为完整的法律体系。在官方严厉打压之下,讼师几乎没有任何法律地位。但即使在如此严厉的官府禁止和社会道德谴责的的双重摧残的压力之下,讼师还是在社会中隐秘地艰难地生存下来,而且长期发挥着自己的作用,一直存在到后来近代律师的出现。这不能不说既是个奇迹,也充分说明讼师的存在是符合当时的历史条件和社会环境的,讼师有自己发挥作用和自发成长的空间,更有其自我实现的价值。我们不能否认由于讼师整体生存环境的恶劣,讼师队伍的发展具有非职业性和局限性,所以讼师队伍中也的确存在一些道德素质很低、拨弄是非、唯利是图的小人,但是也有相当部分的讼师在帮助普通民众并维护这些低阶层的弱势群体的正当利益,他们有着自己的职业操守和执业准则,利用自己对清代诉讼制度的熟悉和自己在实践中摸索的各种诉讼技巧,通过为当事人打理案件,包括代写状词,打通官府,出谋划策,不仅对一个个的实际案件发挥了作用,还对整个清朝的司法秩序产生了很大的影响,在清代司法过程中具有不可或缺的地位。总之,清代讼师法律地位在立法与司法中的差异,造成他们在诉讼活动中一直处于一个很矛盾很尴尬的境地。一方面,普通民众面对复杂的案情,繁琐的审判程序,高高在上的官府,多方的利益博弈,需要精通法律知识和诉讼运作机制的讼师提供指导,这就是清代讼师在民间活跃的主要原因；另一方面,讼师始终受到官方的打压,法律的禁止。讼师的地位得不到社会的正当评价和法律的公正认可,因此司法职业化因为讼师命运的多舛而被中断,没有取得西方律师制度的成就。通过仔细分析清代讼师法律地位在立法与司法中的差异,也为我们今天律师制度的发展也提供了很好的借鉴意义和宝贵的经验教训。如果统治者能够正确地对待讼师这个群体,在法律上能承认讼师从业的合法地位,并且对讼师队伍进行正确合理的引导、管理和监督,必然能最大限度地发挥讼师的正面作用,就如同律师制度一样。
[Abstract]:In the Qing Dynasty, due to the influence of the traditional idea of "interest and litigation", the litigation brought by the ordinary people to safeguard their property or rights was regarded as unscrupulous, and the world was on the decline day by day. For those who instigate and assist in public litigation, they are criticized as "litigants", "good deeds", extremely low political and social status, and the law imposes restrictions on them. Compared with the previous dynasties, with the development of social change and the opening up of ideas, the awareness of the rights of the ordinary people has been strengthened, and the litigation atmosphere in various places has been flourishing, which is incompatible with the guiding ideology of "no litigation" in the country. As a result, the restrictions imposed by the government on the litigants were even more stringent, and there was even a law that specifically penalized the barristers. This was unprecedented. The "offence of abetting litigation" was specifically established in the "Qing Dynasty", and 12 ordinances were attached to the law. Its content is to severely restrict the activities of advocacy as the purpose of legislation, constitute a relatively complete legal system. Under the stern suppression of the Crown, the barrister had little legal standing. But even under the double whammy of such a harsh government ban and social moral condemnation, the barrister still survives stealthily in society and plays its part for a long time. It existed until the emergence of modern lawyers. This can not only be said to be a miracle, but also fully shows that the existence of the advocate is in line with the historical conditions and social environment at that time. The advocate has the space to play his own role and grow spontaneously, and has its own value of self-realization. We cannot deny that due to the poor overall living environment of the barristers, the development of the team of barristers is non-professional and limited. Therefore, there are indeed some small people in the ranks of the advocates who have a very low moral quality, play with right and wrong, and seek only profit. But there are also quite a number of advocates who are helping the general public and defending the legitimate interests of these disadvantaged groups in the lower classes, who have their own professional integrity and standards of practice. Making use of their familiarity with the litigation system of the Qing Dynasty and the various litigation techniques they have groped for in practice, not only have they played a role in handling cases for the parties concerned, including writing pleadings on behalf of the parties, but also in providing advice to the government, they have not only played a role in practical cases, It also had a great influence on the judicial order of the whole Qing Dynasty and played an indispensable role in the judicial process of the Qing Dynasty. In short, the differences between the legal status of the Qing Dynasty and the judiciary caused them to be in a very contradictory and embarrassing situation in the litigation activities. On the one hand, faced with complex cases, cumbersome trial procedures, high ranking officials, and multi-party interests, the ordinary people need to be guided by an advocate who is proficient in legal knowledge and the mechanism of litigation operation. This is the main reason why the Qing Dynasty advocates were active in the people; on the other hand, they were always suppressed by the government and prohibited by law. The status of a barrister can not be properly evaluated by the society and the justice of the law is recognized, so the judicial professionalization is interrupted because of the ill-fated fate of the advocate, and has not obtained the achievement of the western lawyer system. Through the careful analysis of the differences between the legal status of the lawyers in the Qing Dynasty in legislation and judicature, it also provides a good reference and valuable lessons for the development of our lawyer system today. If the ruler can correctly treat the group of advocates, legally recognize the legal status of the practice of the advocate, and give proper and reasonable guidance, management and supervision to the team of advocates, he will certainly be able to give full play to the positive role of the advocate. Just like the system of lawyers.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D929;D925.2

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