清代州县诉讼内调解模式探析
发布时间：2018-08-31 16:14
【摘要】： 中国素有调解的传统,传统调解制度已经成为中国古代法律文化的基本特征之一。传统调解经过长期的传承和积淀,形成了诉讼外调解和诉讼内调解两种形式,在清代发展得较为完善。要了解清代州县自理案件解决机制,诉讼外调解毋庸置疑非常普遍而重要,但是仍然有大批争端,随着呈递告状,而进入官方审理过程,在正式判决之前,都获得了解决。本文主要以既不同于诉讼前的民间调解,也不同于纯然官方判决的中间阶段的州县官府主持或者参与的调解结案案件作为研究对象,以案件是否进入诉讼程序为依据,分析州县诉讼内纠纷调解模式的特点及其大量存在的原因。 清代诉讼内调解模式是指民事或轻微斗殴纠纷进入诉讼程序后所采用的调解方式,包括诉内和解、撤诉、官批民调。清代诉讼内纠纷解决模式本身具有不同于其他纠纷解决方式的特点和存在基础。其独特的作用和特有的功能意义使之在清代纠纷解决实践中被官方广泛采用。本文对清代州县诉讼内调解模式进行初步梳理和解析,并将这种纠纷解决模式放在与诉讼外调解和民事裁判相对照的背景下予以考察。 全文分为四部分:第一部分对清代诉讼内调解进行内涵探析,重新定义划分调解方式。将最终采用调解和息因素结案的案件从诉讼程序的角度出发,以调解因素是否进入诉讼程序,将清代调解分为诉讼外的调解和诉讼内的调解。 第二部分从历史文化、制度、心理层面分析了清代诉讼内调解模式存在的基础。分为四节:第一节讲述中国传统文化是清代诉讼内调解模式的文化基础。第二节说明清代的官员考核制度推动诉讼内调解。第三节分析调解息争的制度基础。清代对当事人诉权在身份和资格上、在程序上、在证据上、在受理时间上做出限制。第四节从心理层面上分析,讼累也促使双方当事人接受调解。 第三部分将诉讼内调解与诉讼外调解相比较,探析其固有的特征。分为四节:第一节讲述诉讼内调解是一种在诉讼中进行的活动。第二节分析诉讼内调解在心理层面上对当事人的压力,带着强烈的强制色彩。第三节说明诉讼内调解的依据是理法并行,法律在诉讼调解中起着不可忽视的作用。第四节分析诉讼调解结案是州县官审结民事案件的一种方式,具有法律上的执行力。 第四部分讲述清代诉讼内调解的功能和作用。第一节阐述了清代纠纷解决机制之间的相互关系,诉讼内调解和裁判在诉讼中具有的功能和实际发挥的作用,并且当事人与州县官对这两种解决机制所持的看法与态度。第二节分析诉讼内调解在与诉讼外调解和民事裁判相对照的背景下对纠纷解决的有效性。第三节说明诉讼内调解的局限性,产生于中国传统文化的土壤之上与制度和意识紧密相连。 清代诉讼内调解在清代纠纷解决机制中发挥了不可忽视的作用,修正了诉讼外调解和直接裁判判决的一些缺点,在清代自理案件中被广泛使用。清代州县官府倾向采用诉讼内调解方式结案但并未使其转化为一种官方书面制式制度,很大程度上这种运作模式还是出于一种习惯的做法。在诉讼过程中,选择调解还是裁判,这两种解决方式在当时都是开放性的,这种性质决定了一种局面的存在,即在解决同一纠纷时往往被同时选择,于是二者之间有矛盾冲突也有着相互交织的关系。清代大量采用诉内调解方式结案是当时的时代背景、经济政治制度之下各方利益博弈的必然选择。
[Abstract]:The traditional mediation system has become one of the basic characteristics of ancient Chinese legal culture. After a long period of inheritance and accumulation, the traditional mediation has formed two forms: extrajudicial mediation and intrajudicial mediation, which developed more perfectly in the Qing Dynasty. It is undoubtedly very common and important, but there are still a large number of disputes, with the filing of complaints, and into the official trial process, before the formal judgment, have been resolved. As the research object, based on whether the case enters the litigation procedure or not, this paper analyzes the characteristics of the dispute mediation mode in state and county lawsuits and the reasons for its massive existence.
Intra-litigation mediation mode in Qing Dynasty refers to the mediation mode adopted by civil or minor affray disputes after entering litigation procedure, including intra-litigation mediation, withdrawal of litigation, official approval and public opinion poll. Dispute settlement in Qing Dynasty was widely used by the government. This paper makes a preliminary analysis of the mode of mediation in litigation in Qing Dynasty prefectures and counties, and inspects it against the background of mediation outside litigation and civil adjudication.
The paper is divided into four parts: The first part is to analyze the connotation of mediation in Qing Dynasty and redefine the ways of mediation.
The second part, from the historical, cultural, institutional, psychological level, analyzes the basis of the Qing Dynasty litigation mediation model. It is divided into four sections: the first section tells that Chinese traditional culture is the cultural basis of the Qing Dynasty litigation mediation model. The second section explains that the Qing Dynasty official assessment system promotes litigation mediation. In the Qing Dynasty, the litigant's right to Sue was limited in status and qualification, procedural and evidence, and the time of acceptance.
The third part compares the mediation inside the lawsuit with that outside the lawsuit, and explores its inherent characteristics. It is divided into four sections: the first section describes that the mediation inside the lawsuit is an activity in the lawsuit. According to concurrent jurisprudence and law, law plays an important role in litigation mediation. Section IV analyzes that litigation mediation is a way for state and county officials to try and settle civil cases, with legal enforcement.
The fourth part talks about the function and function of mediation in litigation in Qing Dynasty. The first section expounds the relationship between the dispute settlement mechanism in Qing Dynasty, the function and actual function of mediation and Adjudication in litigation, and the views and attitudes of the litigants and county magistrates toward the two mechanisms. The third section illustrates the limitation of mediation in litigation, which originates from the soil of Chinese traditional culture and is closely related to system and consciousness.
Intra-litigation mediation in Qing Dynasty played an important role in the dispute settlement mechanism in Qing Dynasty. It corrected some shortcomings of extralitigation mediation and direct judgment and was widely used in self-handling cases in Qing Dynasty. To a large extent, this mode of operation is still a customary practice. In the process of litigation, the choice of mediation or adjudication, the two solutions were open at that time, this nature determines the existence of a situation, that is, in the settlement of the same dispute is often chosen at the same time, so there are contradictions and conflicts between the two. In Qing Dynasty, a large number of cases were settled through mediation in litigation, which was the inevitable choice of the game of interests between all parties under the economic and political system.
【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
本文编号：2215504
[Abstract]:The traditional mediation system has become one of the basic characteristics of ancient Chinese legal culture. After a long period of inheritance and accumulation, the traditional mediation has formed two forms: extrajudicial mediation and intrajudicial mediation, which developed more perfectly in the Qing Dynasty. It is undoubtedly very common and important, but there are still a large number of disputes, with the filing of complaints, and into the official trial process, before the formal judgment, have been resolved. As the research object, based on whether the case enters the litigation procedure or not, this paper analyzes the characteristics of the dispute mediation mode in state and county lawsuits and the reasons for its massive existence.
Intra-litigation mediation mode in Qing Dynasty refers to the mediation mode adopted by civil or minor affray disputes after entering litigation procedure, including intra-litigation mediation, withdrawal of litigation, official approval and public opinion poll. Dispute settlement in Qing Dynasty was widely used by the government. This paper makes a preliminary analysis of the mode of mediation in litigation in Qing Dynasty prefectures and counties, and inspects it against the background of mediation outside litigation and civil adjudication.
The paper is divided into four parts: The first part is to analyze the connotation of mediation in Qing Dynasty and redefine the ways of mediation.
The second part, from the historical, cultural, institutional, psychological level, analyzes the basis of the Qing Dynasty litigation mediation model. It is divided into four sections: the first section tells that Chinese traditional culture is the cultural basis of the Qing Dynasty litigation mediation model. The second section explains that the Qing Dynasty official assessment system promotes litigation mediation. In the Qing Dynasty, the litigant's right to Sue was limited in status and qualification, procedural and evidence, and the time of acceptance.
The third part compares the mediation inside the lawsuit with that outside the lawsuit, and explores its inherent characteristics. It is divided into four sections: the first section describes that the mediation inside the lawsuit is an activity in the lawsuit. According to concurrent jurisprudence and law, law plays an important role in litigation mediation. Section IV analyzes that litigation mediation is a way for state and county officials to try and settle civil cases, with legal enforcement.
The fourth part talks about the function and function of mediation in litigation in Qing Dynasty. The first section expounds the relationship between the dispute settlement mechanism in Qing Dynasty, the function and actual function of mediation and Adjudication in litigation, and the views and attitudes of the litigants and county magistrates toward the two mechanisms. The third section illustrates the limitation of mediation in litigation, which originates from the soil of Chinese traditional culture and is closely related to system and consciousness.
Intra-litigation mediation in Qing Dynasty played an important role in the dispute settlement mechanism in Qing Dynasty. It corrected some shortcomings of extralitigation mediation and direct judgment and was widely used in self-handling cases in Qing Dynasty. To a large extent, this mode of operation is still a customary practice. In the process of litigation, the choice of mediation or adjudication, the two solutions were open at that time, this nature determines the existence of a situation, that is, in the settlement of the same dispute is often chosen at the same time, so there are contradictions and conflicts between the two. In Qing Dynasty, a large number of cases were settled through mediation in litigation, which was the inevitable choice of the game of interests between all parties under the economic and political system.
【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
【引证文献】
相关期刊论文 前1条
1 周琳;;城市商人团体与商业秩序——以清代重庆八省客长调处商业纠纷活动为中心[J];南京大学学报(哲学.人文科学.社会科学版);2011年02期
相关硕士学位论文 前2条
1 王能娟;论清代州县官员解决民事纠纷的方式[D];吉林大学;2011年
2 叶琦琼;我国诉前调解制度研究[D];华东政法大学;2012年
，本文编号：2215504
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