清代讼师研究

发布时间：2018-12-10 18:07

【摘要】：讼师,最早可追溯至春秋时期,是指在庭外从事着帮助当事人代写词状、代为交涉、教唆诉讼等助讼活动的类法律职业者。清朝时期,社会经济从“自然经济”开始转型到“商品经济”,财产流动性加强,民间的诉讼案件数量剧增,讼师这一职业迎合了当时的民间需求,发展到一个鼎盛的时期。但从现有的史料记载来看,讼师在当时并未得到应有的法律地位,也没有完全得到百姓的认可和尊重。对于官府而言,讼师的助讼活动促使更多的百姓通过司法程序来解决矛盾纠纷,这样无形中就增加了司法官员的负担,因此,官方对讼师的态度一直是否定的,甚至出台多项政策进行打压、控制。对于民众而言,讼师虽然在一定程度上帮助他们参与诉讼,但是很多时候讼师为了谋取报酬打赢官司,会采用非法且极端的手段,这让百姓对讼师这一职业的职业道德产生了质疑,所以讼师在民众眼中评价不高,甚至以“讼棍”一词来形容他们。目前,大多数的学者和文章对清代讼师的研究基本上都是从讼师的存在原因、官方规制以及法律地位等方面进行探究,学界对讼师的价值也多是否定的。本文另辟蹊径,从讼师秘本出发,通过清代讼师的社会地位、助讼活动、法律价值等方面来探究清代讼师所带来的积极作用以及对现当代律师职业制度发展的借鉴和启示。文章大体分为三章。第一章是从讼师秘本中界定讼师的概念,并通过具体的案例分析清代时期讼师所处的社会地位,包括官方的规制,民众的评价,以及讼师自己对自己的看法;第二章是对讼师助讼活动的内容以及其对诉讼的影响进行探究。主要是通过分析讼师代写诉状、教唆诉讼以及代为交涉三个方面,深刻理解其所带给诉讼制度的影响;第三章是本文的创新之处,在本章我们会深入挖掘清代讼师的法律价值,主要是其对诉讼制度和法律文化的积极作用,而不是像其他文章那样一味地否定讼师所带来的益处,同时,也为现当代的律师职业制度提出符合国情的经验和意见。本文在现有文章的基础上,采用法社会学方法,从法律文化角度,理解社会对讼师的偏见,探究其法律价值,以期能为我国当代律师的发展提供参考和借鉴。
[Abstract]:Litigators, who can be traced back to the Spring and Autumn period, are legal professionals who help the litigants to write words, negotiate, and abet litigation out of court. During the Qing Dynasty, the social economy began to transform from "natural economy" to "commodity economy", property mobility was strengthened, and the number of civil litigation cases increased dramatically. The profession of litigators catered to the needs of the people at that time and developed into a prosperous period. However, according to the existing historical records, the litigators did not get the legal status they deserved at that time, nor were they fully recognized and respected by the common people. As far as the government is concerned, the advocacy activities of the barristers have prompted more people to resolve conflicts and disputes through judicial proceedings, which has virtually increased the burden on judicial officials. Therefore, the attitude of the government towards the advocates has always been negative. Even issued a number of policies to suppress, control. To the public, although to a certain extent, the barristers help them to participate in the proceedings, but in many cases, they will resort to illegal and extreme means in order to get paid to win a lawsuit. This makes people question the professional ethics of the profession, so the public opinion of the advocate is not high, even use the word "advocate" to describe them. At present, the majority of scholars and articles on the Qing Dynasty advocate basically from the existence of the reasons, official regulations and legal status to explore, the academic community of the value of the advocate is mostly negative. This paper tries to explore the positive role of the barristers in the Qing Dynasty from the aspects of their social status, aiding litigation activities and legal value, as well as the reference and inspiration to the development of the legal profession system of modern and contemporary lawyers. The article is divided into three chapters. The first chapter is to define the concept of the barrister from the secret book, and through specific cases to analyze the social status of the barrister in the Qing Dynasty, including the official regulation, the public evaluation, as well as their own views on themselves; The second chapter is to explore the content of advocacy activities and its impact on litigation. Mainly through the analysis of litigations written on behalf of the litigators, abetting litigation and representation of three aspects, a profound understanding of its impact on the litigation system; The third chapter is the innovation of this paper. In this chapter, we will dig deeply into the legal value of the litigation division in Qing Dynasty, mainly because of its positive effect on the litigation system and legal culture, rather than blindly negating the benefit brought by the advocate just like other articles. At the same time, it also puts forward the experience and opinions in accordance with the national conditions for the present and contemporary lawyer professional system. On the basis of the existing articles, this paper uses the method of sociology of law, from the angle of legal culture, to understand the prejudice of the society to the advocate, and to explore its legal value, in order to provide reference and reference for the development of the contemporary lawyers in our country.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D929

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