中国古代讼师现象研究

发布时间：2018-04-24 03:09

本文选题：讼师 + 法律地位　；参考：《华中师范大学》2017年硕士论文

【摘要】：讼师是中国古代特有的现象,他们背后所代表的传统法律文化和政治文化都极具特色、不可忽视。讼师虽然确实且长期地在中国传统法律文化中存在,但由于单一集权式的政治结构及政治意识渗透到社会生活的各个方面,加上统治集团推行“无讼”的思想,讼师一直处于被官方所拒绝和打压的尴尬境地。除了在商品经济极大发展、讼学兴盛的宋朝,官府承认代写书铺的合法存在之外,历代政府对讼师的活动严加禁止,明清时期更甚。中华法系在清末随着西方法文化的传入而被代替,传统的政治文化和法律文化所构筑的伦理大堤受到外来文化和思想的不断冲击,逐渐消退在历史的尘埃中。律师制度在清末由“苏报案”被戏剧性地被传入中国大地,从此,其正当性和合法地位得到承认。律师群体在依法治国、建设社会主义法治文明的今天,是一股重要的力量。本文一共分四个部分。第一部分主要以现代人对讼师的一般理解为开端,辨析了在古代社会中,讼师的实际形象;再借助史料记载中对讼师的各种称呼,解析其所代表的不同内涵,以客观展示讼师的形象。第二部分从四个方面分析了讼师的社会定位:在官府与民众间的沟通桥梁作用。讼师通过代民写书状、指点诉讼技巧和打点官府,在诉讼活动中帮助当事人或自己避免不利处境。讼师的这些活动实则是通过他们自身的法律、文化素养,且非官非民的身份,在沟通代表着官僚精英文化的“大传统”和民间社会的“小传统”。讼师的活动虽然为官府所禁止,但其存在是必然的。第三部分针对官府对讼师的打压从三个方面分析了原因,分别是“无讼”观念的推行、权威的不容质疑与挑战,以及儒家经典的“义利观”。第四部分以“苏报案”为开端,介绍了晚清政府对律师制度的承认与引进。讼师在民间的活动被律师所取代。满清保守的官僚依旧担忧律师是讼师的“借尸还魂”,严加限制和提防。传统的惯性使得完善的律师制度在中国的建立颇为艰难,依旧有很多人将律师与讼师等同。二者虽存在着一定程度上的相似性,但有着较大的差别,只有在二者各自存在的背景中进行比较研究,才具有意义。在这一部分,笔者将中国古代的讼师与极具代表性的英国律师制度进行对比,分别从产生背景、法律地位、社会作用和是否构成群体四个方面做了比较。讼师与英国律师的差别不仅仅是制度上的不同,更是为其所处的不同政治环境和法律文化所决定。对比既加深了认识,也以期对我国的律师制度有所借鉴。
[Abstract]:Advocate is a unique phenomenon in ancient China. The traditional legal culture and political culture behind them are very special and can not be ignored. Although the litigants did exist in the traditional Chinese legal culture for a long time, but because of the single centralized political structure and political consciousness permeating into all aspects of social life, plus the ruling group to carry out the idea of "no litigation". The barrister has been in the awkward position of being rejected and suppressed by the authorities. In addition to the great development of commodity economy, the flourishing of litigation in the Song Dynasty, the government acknowledged the legal existence of the book shop, the past dynasties government strictly prohibited the activities of the advocate, especially in the Ming and Qing dynasties. At the end of the Qing Dynasty, the Chinese law system was replaced with the introduction of the western method culture. The traditional political culture and the legal culture were constantly impacted by the foreign culture and thought, and gradually disappeared in the dust of history. In the late Qing Dynasty, the lawyer system was dramatically introduced into China by Su, and its legitimacy and legal status were recognized. Lawyers are an important force in ruling the country according to law and building socialist civilization of rule of law. This paper is divided into four parts. The first part mainly starts with the modern people's general understanding of the advocate, discriminates and analyzes the actual image of the advocate in the ancient society, and then with the help of the historical records of the various names of the advocate, analyzes the different connotations it represents. To objectively display the image of the advocate. The second part analyzes the social orientation of the advocate from four aspects: the role of communication between the government and the public. By writing pleadings on behalf of the people, instructing litigation techniques and the government, the advocate helps the litigant or himself to avoid disadvantages in litigation activities. In fact, through their own laws, culture, and non-official and non-civil status, the litigants' activities represent the "great tradition" of the bureaucratic elite culture and the "small tradition" of the civil society. Although the activities of advocates are prohibited by the government, their existence is inevitable. The third part analyzes the reasons from three aspects: the implementation of the concept of "no lawsuit", the indisputable and challenge of authority, and the Confucian classic "view of justice and profit". The fourth part introduces the recognition and introduction of the lawyer system in the late Qing Dynasty. The advocate's activities in the people were replaced by lawyers. The conservative bureaucrats of the Qing Dynasty still worried that the lawyer was the advocate of "borrowing the body to return the soul", strict restrictions and precautions. The traditional inertia makes the establishment of perfect lawyer system difficult in China, and many people still equate lawyer with advocate. Although they are similar to each other to some extent, they are quite different, so it is meaningful to make a comparative study in the background of their respective existence. In this part, the author compares the ancient Chinese barristers with the representative English lawyer system from four aspects: the background, the legal status, the social role and whether to form a group. The difference between a barrister and an English lawyer is not only the institutional difference, but also the different political environment and legal culture. The contrast not only deepens the understanding, but also hopes to draw lessons from the lawyer system of our country.
【学位授予单位】：华中师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D929

【参考文献】