论文部分内容阅读
近三十年来,学界对中国传统司法中州县官判案依据有持续的论争,而背后的问题意识却值得反思。从档案出发可以看出清代州县官审理民事案件有其基本的思路,主要表现在:凡民间调解系统或两造言明已经将纠纷调明,衙门一般不再干预与追究;在诉讼过程中,只要民间组织申请销案,一般皆准;将一些诉讼判归家族或乡保调解;往往会忽略两造所述情节,也不一定核实案情;摆明事理,平衡双方利益,试图达到两造“双赢”的结局;对明显危及社会秩序的“刁讼”、“缠讼”行为,衙门予以责处;尊重地方风俗习惯;对部分案件也会参引法律,甚至会直接引用律例。县审民事诉讼的这些思路也多与传统法律文化精神相吻合。之所以如此,实由多种因素综合作用使然。如果认为衙门主要是依法断案,还有诸多问题有待进一步论证。
In the past three decades, there has been a continuous debate among the academic circles on the basis of the Chinese magistrate’s jurisdiction in the county magistrate and the awareness of the problems behind it is worth reflecting on. It can be seen from the file that the state officials in the Qing Dynasty tried their basic ideas in civil cases mainly in the following aspects: Where the civil mediation system or the two constructs have clarified the disputes, the Yamen generally no longer intervenes and investigates; in the process of litigation , As long as the civil organizations apply for the pinning case, generally are accurate; some of the litigation will be sentenced to the family or the township security mediation; often ignore the two made the plot, nor necessarily verify the case; clear reason, balance the interests of both parties, “Win-win” outcome; to the “Diao litigation”, “torture” behavior apparently endangering social order, yamen to be responsible; respect for local customs and habits; on some cases will also refer to the law, and even direct Citation law. County trial civil litigation these ideas are also more consistent with the spirit of traditional legal culture. The reason why, in fact, the combined effect of a variety of factors. If you think the Yamen mainly according to the law, there are still many issues to be further demonstrated.