家族观念与中国传统法制的历史互动及其现代价值
发布时间：2019-01-04 19:06
【摘要】： 一切制度均是观念的外化。中国人所特有的家族观念,在漫长的历史长河中,不仅得到儒家思想的认可与推崇,而且还逐渐演化为伦理法与家法族规,从而形成了不同于世界其他地区的中华法系。历史上家族观念所起的作用是伟大的,家族观念与国家立法之间是一种良性的互动关系,但是清末变法修律以来,家族观念逐渐被质疑、否定,被视为法制近现代化的绊脚石。 本文认为家族观念之所以能够影响中国数千年,并被历代法律所吸纳,是因为家族观念必定有其合理价值,尽管其中一些观点不符合现代社会的价值追求,但也决不能简单的全盘否定家族观念。真正科学的做法是对家族观念加以挖掘,找出那些仍具有现代价值的思想,并加以现代化,以服务现代法治。为了论述这一问题,本文共分为四章。 论文第一章,首先界定了家族与家族观念的概念,并按照历史顺序详细叙述了家族观念产生和发展的历史过程。从家族观念的发展过程我们可以看出,家族观念与古代社会的发展是相适应的,这一观念对于古代国家建构“家国一体”的制度模式起着重要的作用。 在第二章里面,论文通过大量的实例论证了家族观念对古代立法的深刻影响。论文认为伦理法与家法族规是家族观念的两大外化形式,并认真研究了伦理法与家法族规的产生、发展和表现形式,通过这些论证可以清楚的发现,无论是对于国家法,还是对于民间法,家族观念都是不可或缺的一个决定因素。 第三章侧重于国家法律对家族观念的影响,通过分析,论文把这种影响分为两种截然不同的方式,而清末变法修律就是这种不同影响的分水岭,在此前后,家族观念面临的是两种不同的命运。 最后一章是在前三章的基础上肯定了家族观念中的一些积极价值,并针对现代法制中的一些问题与不足对症下药,强调现代法律应当立足中国文化传统的实际,加强对家庭伦理的规范与保护,以促进法律的健康完善和社会的稳定和谐。
[Abstract]:All systems are the externalization of ideas. In the long history, the unique family concept of Chinese people has not only been recognized and respected by Confucianism, but also gradually evolved into ethical law and family rules, thus forming the Chinese legal system which is different from other parts of the world. In history, the role of the family concept is great, and the relationship between the family concept and the national legislation is a kind of benign interaction, but since the reform of the law in the late Qing Dynasty, the family concept has gradually been questioned, negated, and regarded as a stumbling block to the modernization of the legal system. This paper argues that the reason that family concepts can influence China for thousands of years and are absorbed by the laws of successive dynasties is that they must have reasonable value, although some of them do not conform to the value pursuit of modern society. But you can't simply negate the idea of a family altogether. The real scientific approach is to excavate the family concept, find out those thoughts that still have modern value, and modernize them to serve the modern rule of law. In order to discuss this problem, this paper is divided into four chapters. In the first chapter, we define the concept of family and the concept of family, and describe in detail the historical process of the emergence and development of the concept of family according to the historical order. From the development process of the family concept, we can see that the family concept adapts to the development of the ancient society, which plays an important role in the construction of the system model of "the family and the country as a whole" in the ancient country. In the second chapter, the paper demonstrates the profound influence of family concept on ancient legislation through a large number of examples. The paper thinks that the ethical law and the family rule are the two externalized forms of the family concept, and studies the emergence, development and expression form of the ethics law and the family law regulation. Through these argumentation, it can be found clearly, no matter for the national law, For folk law, the concept of family is an indispensable determinant. The third chapter focuses on the influence of national law on the concept of family. Through the analysis, the paper divides this influence into two distinct ways, and the law of reform in the late Qing Dynasty is the watershed of this kind of different influence. The concept of family faces two different fates. The last chapter affirms some positive values in the family concept on the basis of the first three chapters, and points out that the modern law should be based on the reality of Chinese cultural tradition, aiming at some problems and shortcomings in the modern legal system. Strengthen the regulation and protection of family ethics in order to promote the healthy improvement of law and social stability and harmony.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D929
本文编号：2400676
[Abstract]:All systems are the externalization of ideas. In the long history, the unique family concept of Chinese people has not only been recognized and respected by Confucianism, but also gradually evolved into ethical law and family rules, thus forming the Chinese legal system which is different from other parts of the world. In history, the role of the family concept is great, and the relationship between the family concept and the national legislation is a kind of benign interaction, but since the reform of the law in the late Qing Dynasty, the family concept has gradually been questioned, negated, and regarded as a stumbling block to the modernization of the legal system. This paper argues that the reason that family concepts can influence China for thousands of years and are absorbed by the laws of successive dynasties is that they must have reasonable value, although some of them do not conform to the value pursuit of modern society. But you can't simply negate the idea of a family altogether. The real scientific approach is to excavate the family concept, find out those thoughts that still have modern value, and modernize them to serve the modern rule of law. In order to discuss this problem, this paper is divided into four chapters. In the first chapter, we define the concept of family and the concept of family, and describe in detail the historical process of the emergence and development of the concept of family according to the historical order. From the development process of the family concept, we can see that the family concept adapts to the development of the ancient society, which plays an important role in the construction of the system model of "the family and the country as a whole" in the ancient country. In the second chapter, the paper demonstrates the profound influence of family concept on ancient legislation through a large number of examples. The paper thinks that the ethical law and the family rule are the two externalized forms of the family concept, and studies the emergence, development and expression form of the ethics law and the family law regulation. Through these argumentation, it can be found clearly, no matter for the national law, For folk law, the concept of family is an indispensable determinant. The third chapter focuses on the influence of national law on the concept of family. Through the analysis, the paper divides this influence into two distinct ways, and the law of reform in the late Qing Dynasty is the watershed of this kind of different influence. The concept of family faces two different fates. The last chapter affirms some positive values in the family concept on the basis of the first three chapters, and points out that the modern law should be based on the reality of Chinese cultural tradition, aiming at some problems and shortcomings in the modern legal system. Strengthen the regulation and protection of family ethics in order to promote the healthy improvement of law and social stability and harmony.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D929
【参考文献】
相关期刊论文 前1条
1 刘广安;;论明清的家法族规[J];中国法学;1988年01期
，本文编号：2400676
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