礼法融合：中国传统法律文化的当代价值研究

发布时间：2018-11-04 11:23

【摘要】：中国传统法律蕴涵着丰富的法治基因,具有内在的法治逻辑。中国传统法律文化所蕴涵的国法、伦理、人情相互交织在一起,共同维系着家国一体,家国同构的封建社会。本文共分六个章节论述中国传统法律的基本模式、基本内涵和基本原则,评价中国传统法律文化的优缺点,探究中国传统法律文化对当今社会的价值。第一章,介绍本文的研究背景和意义,梳理了多个学者对礼法融合及中国传统法律的研究,说明文章采用的主要研究方法及创新之处。第二章,从礼法融合,德主刑辅,引礼制律三个方面,介绍中国传统法律的基本模式。提出在礼法融合的背景下,儒法两家所争论的“礼治”和“法治”,都成为统治者的治世手段,二者之间并不绝对对立。第三章,中国传统法律的基本内涵是法顺乎人情,人情重于法律。儒法合流,礼法于一,实现统治者经国治民的目的。第四章,中国传统法律基本原则表现在儒家学者实现律典的一准乎礼,并基于儒家思想,要求统治阶层进行自我道德约束,做到为法以直,身正令行。第五章,对中国传统法律文化进行评价,肯定中国传统法律中以人为本,恤刑慎杀,调处息讼,实现社会和谐的法律思想,以及法律制度建设。否定其刑罚体系的严密与刑罚手段的残酷,以及法律中的特权思想与规定等。第六章,就中国传统法律文化对当代社会的价值,主要从立法、执法、司法三个方面为完善我国法制提出建议。探讨德法合治的综合治理模式,对我国社会主义法治建设所具有的启示意义。
[Abstract]:Chinese traditional law contains abundant genes of rule of law and has inherent logic of rule of law. The Chinese traditional legal culture contains national law, ethics and human feelings, which are intertwined with each other, and together maintain a feudal society in which the family and the country are one body and the family and the country are isomorphic. This article is divided into six chapters to discuss the basic mode, basic connotation and basic principles of Chinese traditional law, to evaluate the advantages and disadvantages of Chinese traditional legal culture, and to explore the value of Chinese traditional legal culture to today's society. The first chapter introduces the research background and significance of this paper, combs many scholars' research on the integration of etiquette law and Chinese traditional law, and explains the main research methods and innovations of the article. The second chapter introduces the basic mode of Chinese traditional law from three aspects: the fusion of etiquette and law, the combination of morality and punishment, and the introduction of etiquette. Under the background of the integration of etiquette and law, the "rule of etiquette" and "rule by law", which are disputed by Confucianism and law schools, are both the means of ruling the world by rulers, and they are not absolutely opposed to each other. The third chapter, the basic connotation of Chinese traditional law is that law is subordinate to human, and human is more important than law. The combination of Confucianism and law, ritual law in one, to achieve the goal of rulers governing the country. In the fourth chapter, the basic principles of Chinese traditional law are embodied in the Confucian scholars' realization of the standard of propriety, and on the basis of Confucian thought, the ruling class is required to carry out self-moral restraint, to be straight for the law, and to be ordered by the body. The fifth chapter evaluates the Chinese traditional legal culture and affirms the legal thought and legal system construction of Chinese traditional law, which is people-oriented, considerate of punishment and careful killing, mediation of litigation, realization of social harmony, and construction of legal system. It denies the rigour of penalty system and the cruelty of penalty means, as well as the thought and stipulation of privilege in law. The sixth chapter, on the value of Chinese traditional legal culture to the contemporary society, mainly from the legislation, law enforcement, judicial three aspects to improve our legal system. This paper probes into the comprehensive management mode of the rule of law by virtue and law, which has enlightening significance to the construction of socialist rule of law in our country.
【学位授予单位】：江苏大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D929

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