现代化视野下的中国法制变革（1912-1928）

发布时间：2018-09-05 10:55

【摘要】： 民国前期的法制历经近二十年的变革,在学习和吸收西方先进法制经验,继承清末变法修律成果的基础上,基本形成了包括宪法、民法、刑法、商法、诉讼法和法院编制法在内的“六法全书”体系,法制变革成果十分显著。本文在参考前人研究成果基础上,以现代化理论为指导,采用史学、法学跨学科相结合研究方法,探讨了民国前期(1912——1928)法制变革的进程、内容和历史成就,以期丰富中国近代法制变革的研究。这一时期,制宪运动频仍,制宪成果颇丰。然而军阀政治下,北洋军阀标榜法统,以宪法粉饰专制,虽有宪法之名,但无宪政之实。法典化开启了中国民法现代化进程,法典化亦成为民法现代化变革的主旋律。在传承与超越中,刑法现代化曲折的向前发展。商法立法模式则经历了由“民商分立”到“民商合一”的转变。民事诉讼法、刑事诉讼法和行政诉讼法等三大诉讼法的变革打破了中国古代法制实体法与程序法不分的格局,民事诉讼程序、刑事诉讼程序和行政诉讼程序的变革体现了立法者对程序正义的不懈追求。法院编制法对法院体制作了严密规定,保障程序正义的实现。民国前期的法制变革继承了清末法制变革成果,亦为南京国民政府的法制建设奠定了基础,促进了现代化法制进程的发展。民国前期法制变革的经验教训给我们今天的法制建设以诸多启示。
[Abstract]:The legal system in the early period of the Republic of China has undergone nearly 20 years of reform. On the basis of studying and absorbing the western advanced legal system experience and inheriting the achievements of the law reform in the late Qing Dynasty, it has basically formed the constitution, civil law, criminal law and commercial law. The system of "six laws", including the law of procedure and the law of the court, has made remarkable achievements in the reform of the legal system. Based on the previous research results and guided by the modernization theory, this paper discusses the process, content and historical achievements of the legal system reform in the early period of the Republic of China (1912-1928) by using the interdisciplinary research method of historiography and law. In order to enrich the modern Chinese legal system reform research. During this period, the constitution-making movement was frequent and the constitution-making achievements were abundant. However, under the warlord politics, the Northern warlords preached the legal system, whitewashed the autocracy with the constitution, although it had the name of the constitution, it did not have the reality of the constitutionalism. Codification has opened the modernization process of Chinese civil law, and it has also become the main melody of the modernization of civil law. In the course of inheritance and transcendence, the modernization of criminal law develops zigzag. The legislative model of commercial law has gone through the transformation from "separation of civil and commercial affairs" to "integration of civil and commercial affairs". The changes in the three major procedural laws, such as the civil procedure law, the criminal procedure law and the administrative procedure law, have broken the pattern of no distinction between the legal substantive law and the procedural law in ancient China. The reform of criminal procedure and administrative procedure reflects the lawmaker's unremitting pursuit of procedural justice. The law of court establishment makes strict provisions on the court system and guarantees the realization of procedural justice. The legal system reform in the early period of the Republic of China inherited the achievements of the legal reform in the late Qing Dynasty and laid the foundation for the legal system construction of the Nanjing National Government and promoted the development of the legal system process of modernization. The experience and lessons of the legal system reform in the early Republic of China give us a lot of enlightenment to the legal system construction today.
【学位授予单位】：江西师范大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：K258;D929

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