沈家本的法律思想与中国法制近代化

发布时间：2018-05-24 19:49

本文选题：沈家本 + 清末修律　；参考：《广西师范大学》2004年硕士论文

【摘要】：沈家本(1840——1913)是中国近代史上著名的法学家。他曾对中国法制的近代化作过较大贡献。本文通过三个部分,对沈家本的法律思想及其与中国法制近代化的关系作了一些分析、探讨。第一部分,清末法制近代转型的背景。中国法制的近代化是一个艰难、曲折的过程。这一过程的基本内涵,表现为扬弃传统法律体系,在吸收西方法律理论和法律原则的基础上,建立具有近代意义的新的法律体系。治外法权的丧失,不但严重破坏了中国的司法主权,而且也严重损害了中国人的民族自尊心和自信心。随着社会经济形态的半封建半殖民地化,出现了新的社会关系和经济关系,传统法律对此无力进行调整。经济实力日益增强的资产阶级要求法律保护他们利益,封建法律显然没有这方面的内容。国门洞开后随之而来的“西学东渐”,使得中国先进的知识分子受到了西方法文化的洗礼。他们对西方资本主义法律制度也由朦胧到清晰、由破碎到系统、由介绍到称赞,由宣传到实践,不断加深认识。义和团运动虽然被镇压下去了,但帝国主义和清王朝都感觉无法照旧统治下去。帝国主义想把中国的法律改造成为“西式”的法律,以更好地维护它们的在华利益,而清政府希望通过法律改革收回领事裁判权,以巩固自己的统治。在这些种种内力外力的共同作用下,20世纪初,中国法制开始了向近代的转型。沈家本主持的法制变革就是在这种背景下进行的。第二部分,沈家本的法律思想与法律实践。沈家本是当时闻名的律学家。他虽然通晓古律,但却并不泥于古。他以“会通中西”为宗旨,将西方的法律体系、法律原则纳入新制定的法律,他主张废除残酷的刑罚手段、删除比附、主张法律平等、主张实行惩治教育等,使中国法制与世界法制文明接轨。他所主持的修律在民商法、刑法、诉讼法、法院组织法等方面都取得了丰硕的成果,初步建构起了由部门法组成的近代法系。第三部分,沈家本的法律思想对中国法制近代化的影响及其局限性。清末修律在中国法制史上具有划时代的意义。它虽然是走投无路的清政府为了维护统治而不得不采取的一项改革措施,但它在客观上却促成了中国封建法制向近代法制的转变。沈家本作为这次修律的主要主持者,他的思想必然会对法制近代化产生影响。修律时所制订的一些法律,被后来的南京临时政府、北洋政府和国民政府援用。在修律过程中,沈家本引进的司法独立、法律面前人人平等、立法统一及人道主义、罪行法定等原则,至今仍然是我们立法和司法所遵循的原则。沈家本生活的时代是中国社会大动荡大变革的时代,也是中西法律开始接触并激烈碰撞的时代。固有的以纲常名教为核心的封建法律文化,具有对外来法律文化的排它性;而以资产阶级人文主义为核心的资产阶级法律文化虽然挟着不可阻挡之势,汹涌地侵入中国,但却缺乏迅速发展的物质基础。因此,中西法律文化碰撞的结果,必然产生激烈的斗争,而一些封建落后的思想也不可能马上退出历史舞台。这个时代的特点,给沈家本的法律思想打上了深刻的烙印,使他的思想不可避免地带有这样或那样的局限性。
[Abstract]:Shen Jiaben (1840 - 1913) is a famous jurist in modern Chinese history. He has made a great contribution to the modern Chinese legal system. Through three parts, this article analyses Shen Jiaben's legal thought and its relationship with the modernization of China's legal system.
The first part is the background of the transformation of the modern legal system in the late Qing Dynasty. The modernization of China's legal system is a difficult and tortuous process. The basic connotation of this process is to establish a new legal system with modern significance on the basis of absorbing the western legal theory and legal principles.
The loss of extraterritorial legal rights has not only seriously damaged the judicial sovereignty of China, but also seriously damaged the national pride and self-confidence of the Chinese people. With the semi feudal and semi colonial transformation of the social and economic forms, new social relations and economic relations have appeared, and the traditional law has not been adjusted. The feudal law obviously had no content in the law to protect their interests. The "Western learning to the East" followed the opening of the country. The Chinese advanced intellectuals were baptized by the western law culture. They were also obscure to the system, from the broken to the system, from the introduction to the praise, from the propaganda. Although the Boxer Movement was suppressed, the imperialists and the Qing Dynasty felt unable to rule. The imperialists wanted to transform the Chinese law into a "western" law to better safeguard their interests in China, and the Qing government hoped to recover the consular jurisdiction through legal reform. In order to consolidate his rule, under the joint action of these internal forces and external forces, the Chinese legal system began to transform to modern times in the early twentieth Century. The legal reform presided by Shen Jiaben was carried out in this context.
The second part, Shen Jiaben's legal thought and legal practice. Shen Jiaben is a famous law scientist at that time. Although he knew the ancient law, he did not muddy in ancient times. He took the western legal system and the legal principles into the new law with the aim of "meeting the West and the West". He advocated abolishing the cruel means of punishment, deleting the appending, and advocating the equality of the law. He advocated the practice of punishing education and so on to bring the Chinese legal system into line with the civilization of the legal system in the world. The law he presided over in the civil and commercial law, the criminal law, the law of litigation, the law of the court and so on, have made a great achievement, and initially constructed the modern legal system composed of department law.
The third part, the influence and limitations of Shen Jiaben's Legal Thought on the modernization of Chinese legal system. The revision of the law in the late Qing Dynasty has epoch-making significance in the history of Chinese legal system. Although it is a reform measure that the Qing government has to take to safeguard its rule, it has contributed to the modern law of China's feudal legal system to the modern law. As the chief leader of the law, Shen Jiaben, as the chief leader of the law, was bound to have an influence on the modernization of the legal system. Some laws formulated during the period were invoked by the later Nanjing provisional government, the Beiyang government and the national government. In the course of the law, the judicial independence introduced by Shen Jiaben, the equality before the law, and the unification of the legislation. The principles of humanitarianism and legality are still the principles followed by our legislation and judiciary.
The time of Shen Jiaben's life is an era of great social turmoil and great change in Chinese society. It is also an era of beginning contact and fierce collision between Chinese and western laws. The inherent feudal legal culture, with the core of the program as the core, has the exclusion of the foreign legal culture, while the bourgeois legal culture, with the core of bourgeois humanism, has not been carried out. It is a barrier to invade China, but it lacks the material basis for rapid development. Therefore, the result of the collision between Chinese and western legal culture inevitably produces a fierce struggle, and some feudal backward ideas can not immediately withdraw from the historical stage. The characteristics of this era have imprinted Shen Jiaben's legal thought deeply and made him. Ideas inevitably have such or such limitations.
【学位授予单位】：广西师范大学
【学位级别】：硕士
【学位授予年份】：2004
【分类号】：D909.2

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