吴经熊法律实践研究（1917-1949）

发布时间：2019-04-24 09:52

【摘要】： 吴经熊在东吴法科求学期间表现优异。他在该校所受的良好影响有:现代的育人理念和系统的法学教育。他的两次出国深造经历,为他一生的法学学术奠定了坚实的基础。他曾有幸结交国际法学大师,并有机会和能力与他们“坐而论道”。如师从施塔姆勒,后追随庞德大师。最值得一书的是他与美国现代著名大法官霍姆斯忘年交,一时传为国际法学界的一段学术佳话,成为近代中西法律思想文化交流的典型成功个案。吴经熊的法学学术活动主要有三个方面:一是理论建树,即考察中国传统法律思想,评介西方法律思想,创见法律哲学思想,研究中国法制进程;二是文献编纂,即汇编和校对法学论著,编撰和校勘法学工具书;三是传媒平台搭建,即主编《法令周刊》,主持上海法学编译社,支持《法学季刊》建设。吴经熊作为法学大家对近代中国法制进程的最大贡献体现在法学学术方面。吴经熊作为大学教师有着先进的法律教育理念,承担了较为繁重的一线教学工作。他作为学术权威撰写学术论著、参加国内外重要学术会议、与本校同事进行学术交流、带领本校学生翻译西方法学名著,以及与兄弟院校进行学术交流等活动,引领法学时代潮流。他在担任11年的院长期间做了大量工作:如调整办学思路、加强师资建设、改善办学条件等,为东吴法学的腾飞做出了巨大贡献。吴经熊的司法实践包括:担任律师,维护了法律的尊严,开了社会风气,乃至维护国权;在上海公共租界临时法院担任推事,通过重大案件的审判,试图将“中国法律霍姆斯化”,维护自己心中的司法独立原则;担任上海公共租界临时法院代理院长,做到了中规中矩、尽职尽责;担任上海公共租界工部局法律顾问,试图将工部局的行为尽量纳入到中国法制的轨道;担任联合国制宪大会中国代表团法律顾问,组织起草《联合国宪章》中文文本。吴经熊与民国立法的关系有:参与制定《中华民国民法》,并进行建言、解读及宣传;编撰《吴氏宪草》、主持制定《五五宪草》和参与制定1946年《中华民国宪法》。特别是他的宪政实践对近代中国的法制现代化建设,做出了不可磨灭的贡献。吴经熊是少数几位能够从容游走于学术与政治之间的近代历史人物之一。他的学术与政治命运最终结局是:半是成功、半是失败。他的个人命运反映了近代中国法界知识分子共同面临的社会最终命运——法律救国的道路在近代中国是走不通的。
[Abstract]:Wu Jing-Xiong performed well during his studies in Soochow. His good influences in the school include modern educational ideas and systematic legal education. His two overseas study experiences laid a solid foundation for his life's legal science. He had the privilege of meeting with international law masters, and had the opportunity and the ability to sit down with them. As a teacher of Starmler, followed by Master pound. Most worthy of the book is that he and the famous American modern justice Holmes forgotten friendship, for a while as an international law academic story, become a modern Chinese and western legal ideological and cultural exchange of typical successful case. There are three main aspects of Wu Jingxiong's legal academic activities: one is theoretical contribution, that is, investigating Chinese traditional legal thought, evaluating western legal thought, creating legal philosophy thought and studying Chinese legal process; The second is the compilation of documents, namely the compilation and proofreading of legal works, the compilation and collation of legal reference books, and the establishment of the media platform, that is, the editor-in-chief of the Law Weekly, who presides over the Shanghai Law compilation and compilation Society, and supports the construction of the Quarterly Journal of Law. Wu Jingxiong's greatest contribution to the legal process of modern China is reflected in the academic aspect of law. As a university teacher, Wu Jingxiong has advanced concept of legal education and has undertaken a relatively onerous front-line teaching work. As an academic authority, he wrote academic works, participated in important academic conferences at home and abroad, conducted academic exchanges with his colleagues, led his students to translate western law masterpieces, and conducted academic exchanges with fraternal colleges and universities. Lead the trend of the times of law. During his 11 years as dean, he has done a lot of work, such as adjusting the thinking of running a school, strengthening the construction of teachers, improving the conditions of running a school, and so on, which has made great contributions to the development of the law of Soochow. Wu Jingxiong's judicial practice includes: acting as a lawyer, safeguarding the dignity of the law, opening up the social atmosphere, and even safeguarding the power of the state; Acting as a judge in the interim Court of Public concession in Shanghai, through the trial of major cases, he tried to "transform the Chinese law Homs" to safeguard the principle of judicial independence in his own mind. Acting as acting President of the interim Court of Public concession of Shanghai, he has done the proper and due diligence, served as legal adviser of the Shanghai Public concession Bureau of Industry and attempted to bring the conduct of the Ministry of Industry into the track of China's legal system as far as possible. Legal adviser to the Chinese delegation of the United Nations Constituent Assembly, organizing the drafting of the Chinese text of the Charter of the United Nations. The relations between Wu Jingxiong and the legislation of the Republic of China include: participating in the formulation of the Civil Code of the Republic of China, making suggestions, interpreting and publicizing; compiling the draft of Wu's Constitution, presiding over the drafting of the draft Constitution of the Fifth five-year Plan and participating in the drafting of the Constitution of the Republic of China in 1946. In particular, his constitutional practice made an indelible contribution to the modernization of the legal system in modern China. Wu Jingxiong is one of the few modern historical figures who can walk between academic and political leisurely. His academic and political destiny ends with half success and half failure. His personal destiny reflects the ultimate social fate faced by the intellectuals of modern Chinese legal circles-the road of saving the country by law is not possible in modern China.
【学位授予单位】：苏州大学
【学位级别】：博士
【学位授予年份】：2009
【分类号】：D909.2

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