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对民事审判依据的考察是梳理民事法律渊源、理解司法运行实践的钥匙。将《名公书判清明集》所载民事案件分为财产关系、人身关系、人身和财产纠结关系三类,分别考察天理、国法和人情作为审判依据的适用情况,发现“民事审判主要以情理为依据”的主流观点失于粗疏和片面。在财产关系案件中七成以上的案件都依法审判,在人身和财产纠结案件中法律的适用也比较普遍。在商品经济的促进下,用法律保护私权利更有利于息讼目标的实现。
The investigation of the basis of civil trial is the key to sort out the origin of civil law and understand the operation of judicial practice. The civil cases contained in “Ming Gong Shu Qing Ming Ji” are divided into three categories: property relationship, personal relationship, body tangled relationship between property and property, respectively examining the application of Heavenly Law, National Law and Humanity as the basis for trial and found that “civil trial mainly takes” Reason based on "the mainstream view is lost in the rough and one-sided. In the case of property relations, more than 70% of the cases are judged according to law, and the application of law is also more common in the case of property and property tangles. With the promotion of commodity economy, the protection of private rights by law is more conducive to the realization of the target of litigation.