从变法修律过程中的礼法之争看清朝末期的中西法律文化冲突
发布时间：2018-11-26 09:03
【摘要】：清末修律中的礼法之争,具体可分为四个阶段:第一阶段因《刑事民事诉讼法》草案所引发的是否移植律师制度与陪审制度之争;第二联阶段因制定《大清新刑律草案》而引发的适用西方法律原理原则还是采用礼教伦常原则之争;第三阶段因《大清新刑律草案》而引发的旧律礼教条文是否修入新刑律之争,也即《暂行章程》是否附入新刑律之争;第四阶段是中国立法应以国家主义还是家族主义为主导思想之争。 本文采用中义的法律文化观,礼法之争所引起的中西法律文化冲突主要表现为制度和观念两个方面。在制度层面表现为诸法合体与各个单行法律文本的冲突以及司法制度上律师制度和陪审制度的缺失和司法与行政不分与司法与行政分离的冲突等。在观念层面的冲突表现为罪刑法定原则与罪刑擅断原则的冲突,法律的泛伦理化与法律和道德的相对分离的冲突以及集团本位与个人本位的冲突等等。 礼法之争所引起的中西法律文化冲突,是建立在特定的历史背景下的。清末社会发生了巨大的变迁,政治上,地方与中央关系日益独立,近代化团体与社会组织大量涌现,而思想意识上,则受到西学东渐的影响,并且有了“中体西用”的历史抉择。 礼法之争是表面的论争,隐藏了深刻的文化冲突与差异,这些对中国法制近代化产生了巨大的影响,中国近代法律体系的形成与近代司法制度的形成与之不无关系,同时,中国人法律观念也由崇尚祖宗之法而仿效西法,从强调义务本位到重视个人的权利等也发生了很大的转变。传统法律文化中以人为本的理念也颇具特色。中西法律文化由最初的冲突到如今的碰撞与融合是一个循序渐进的过程,对于清末礼法之争的深刻反思有助于构建有中国特色的现代法律文化,积极地推动中国法制现代化的进程。
[Abstract]:The controversy of etiquette law in the law revision in the late Qing Dynasty can be divided into four stages: the first stage is whether to transplant the lawyer system and the jury system caused by the draft of Criminal Civil procedure Law; In the second phase, there is a dispute between the principles of applying western law or the principles of etiquette and education, which is caused by the formulation of the draft of the Great Clean Criminal Law. In the third stage, whether the old code of etiquette and education provisions is amended into the new criminal law, that is, whether the provisional articles of association are attached to the new criminal law, is caused by the "draft of the Great New Criminal Law"; The fourth stage is the argument that Chinese legislation should be dominated by nationalism or family doctrine. This article adopts the legal culture view of Chinese meaning. The conflict between Chinese and western legal culture caused by the dispute of etiquette law is mainly manifested in two aspects: system and concept. At the institutional level, it shows the conflict between the combination of various laws and individual legal texts, the absence of the lawyer system and the jury system in the judicial system, and the conflict between the judicial and administrative systems and the separation of the judicial and administrative systems. The conflicts at the level of concepts include the conflict between the principle of legality of a crime and the principle of arbitrary judgment of a crime, the conflict between the pan-ethics of law and the relative separation of law and morality, and the conflict between group standard and individual standard, and so on. The conflict between Chinese and Western legal culture caused by the dispute of etiquette and law is based on a specific historical background. In the late Qing Dynasty, great changes took place in the society. Politically, the relationship between the local authorities and the central authorities became increasingly independent. Modern organizations and social organizations emerged in large numbers, while ideological consciousness was influenced by the gradual development of Western learning to the east. And there is a historical choice of "Chinese and Western use". The controversy of etiquette and law is a superficial argument, which hides profound cultural conflicts and differences, which have a great influence on the modernization of Chinese legal system, and the formation of Chinese modern legal system and the formation of modern judicial system have nothing to do with it, at the same time, The legal concept of Chinese people has also changed greatly from advocating the law of ancestors and imitating the western law, from emphasizing the duty standard to attaching importance to the rights of the individual. The idea of people-oriented in traditional legal culture is also characteristic. The collision and fusion of Chinese and Western legal culture from the initial conflict to the present is a gradual process. The profound reflection on the controversy of etiquette and law in the late Qing Dynasty is helpful to the construction of the modern legal culture with Chinese characteristics. Actively promote the modernization of China's legal system.
【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】：D909.2
本文编号：2358074
[Abstract]:The controversy of etiquette law in the law revision in the late Qing Dynasty can be divided into four stages: the first stage is whether to transplant the lawyer system and the jury system caused by the draft of Criminal Civil procedure Law; In the second phase, there is a dispute between the principles of applying western law or the principles of etiquette and education, which is caused by the formulation of the draft of the Great Clean Criminal Law. In the third stage, whether the old code of etiquette and education provisions is amended into the new criminal law, that is, whether the provisional articles of association are attached to the new criminal law, is caused by the "draft of the Great New Criminal Law"; The fourth stage is the argument that Chinese legislation should be dominated by nationalism or family doctrine. This article adopts the legal culture view of Chinese meaning. The conflict between Chinese and western legal culture caused by the dispute of etiquette law is mainly manifested in two aspects: system and concept. At the institutional level, it shows the conflict between the combination of various laws and individual legal texts, the absence of the lawyer system and the jury system in the judicial system, and the conflict between the judicial and administrative systems and the separation of the judicial and administrative systems. The conflicts at the level of concepts include the conflict between the principle of legality of a crime and the principle of arbitrary judgment of a crime, the conflict between the pan-ethics of law and the relative separation of law and morality, and the conflict between group standard and individual standard, and so on. The conflict between Chinese and Western legal culture caused by the dispute of etiquette and law is based on a specific historical background. In the late Qing Dynasty, great changes took place in the society. Politically, the relationship between the local authorities and the central authorities became increasingly independent. Modern organizations and social organizations emerged in large numbers, while ideological consciousness was influenced by the gradual development of Western learning to the east. And there is a historical choice of "Chinese and Western use". The controversy of etiquette and law is a superficial argument, which hides profound cultural conflicts and differences, which have a great influence on the modernization of Chinese legal system, and the formation of Chinese modern legal system and the formation of modern judicial system have nothing to do with it, at the same time, The legal concept of Chinese people has also changed greatly from advocating the law of ancestors and imitating the western law, from emphasizing the duty standard to attaching importance to the rights of the individual. The idea of people-oriented in traditional legal culture is also characteristic. The collision and fusion of Chinese and Western legal culture from the initial conflict to the present is a gradual process. The profound reflection on the controversy of etiquette and law in the late Qing Dynasty is helpful to the construction of the modern legal culture with Chinese characteristics. Actively promote the modernization of China's legal system.
【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】：D909.2
【引证文献】
相关硕士学位论文 前1条
1 贾娜;清末礼法之争评析[D];郑州大学;2013年
，本文编号：2358074
本文链接：https://www.wllwen.com/falvlunwen/fashilw/2358074.html
