明清司法裁断依据
发布时间：2019-03-01 20:56
【摘要】：中国传统司法裁断依据，特别是明清时期，近几十年来一直引起国内外中国法律史学者的讨论。然而，，对这个问题的解读一直是众说纷纭，各执一词。参与讨论的学者依据各自的材料，沿着各自的研究路径去窥探这个问题的答案。 笔者再去探讨这个问题时，就不得不对上述众说纷纭的观点给出自己的分析思考。究竟谁说的更合理？造成上述解读混乱的原因又是什么？明清司法裁断的依据究竟是什么？这是笔者试图努力去回答的问题。 笔者浅见，造成上述解读混乱的第一个原因，是判牍材料选择的差异。不同层面的判牍材料呈现出不小的差异，以往学者没有对此予以足够重视，各自在各自研究的材料中专研，解读的混乱由此产生。造成研究者解读混乱的第二个原因，是研究方法的差异。现象学和类型学这两种方法是以上学者主要的研究方法。这两种方法的各自优劣也导致了研究结论的区别。 带着上述的反思，笔者深入判牍试图去做出自己的解读。笔者发现，“依情”、“依法”、“情法兼尽”等等概念去解释作为一个整体的明清司法裁断依据问题都有其中的合理性，或者说它们都窥探到了明清司法的一个面相。然而明清司法的更加全面真实的面相不是单单一个词汇能够概括的。解读明清司法裁断依据这个问题，离不开对明清司法案件的不同类型进行分别考察，而这种考察向我们展示明清司法的双重面相：在民事案件中，裁判依据是情法交融，以情为主；在刑事案件中是形式依法，情罪允协。
[Abstract]:The basis of Chinese traditional judicial adjudication, especially in Ming and Qing dynasties, has been discussed by scholars of Chinese legal history at home and abroad in recent decades. However, the interpretation of this issue has been divided and different words. The scholars involved in the discussion followed their own research paths to explore the answers to this question based on their own materials. When I discuss this problem again, I have to give my own analysis and thinking to the various opinions mentioned above. Who is more reasonable? What is the cause of the confusion in the above interpretation? What is the basis of judicial adjudication in Ming and Qing dynasties? This is an attempt by the author to answer the question. In the author's opinion, the first reason for the confusion of the above interpretation is the difference in the selection of the materials for judging slips and slips. In the past, scholars did not pay enough attention to it, respectively in their own research of the materials, the confusion of interpretation resulting from the fact that there is no small difference in the materials of the different levels of the judgment of the slips and slips, which have not been paid enough attention by scholars. The second cause of confusion in the researchers' interpretation is the difference in research methods. Phenomenology and typology are the main research methods of the above scholars. The advantages and disadvantages of the two methods also lead to the difference of the research conclusion. With the above reflection, the author tries to make his own interpretation. The author finds that the concepts of "according to emotion", "according to law", "both emotion and law" to explain the basis of judicial decision as a whole in Ming and Qing dynasties have their rationality, or they have peeped into a facet of judicature in Ming and Qing dynasties. However, the judicial aspect of Ming and Qing dynasties is more comprehensive and true than a single word can be summarized. The interpretation of Ming and Qing judicial adjudication based on this problem can not be separated from the different types of judicial cases in Ming and Qing dynasties, and this kind of investigation shows us the dual facets of Ming and Qing judicature: in civil cases, the basis of adjudication is the blending of love and law. Giving priority to emotion; In a criminal case, it is the form according to law and the concurrence of the crime of love.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D929
[Abstract]:The basis of Chinese traditional judicial adjudication, especially in Ming and Qing dynasties, has been discussed by scholars of Chinese legal history at home and abroad in recent decades. However, the interpretation of this issue has been divided and different words. The scholars involved in the discussion followed their own research paths to explore the answers to this question based on their own materials. When I discuss this problem again, I have to give my own analysis and thinking to the various opinions mentioned above. Who is more reasonable? What is the cause of the confusion in the above interpretation? What is the basis of judicial adjudication in Ming and Qing dynasties? This is an attempt by the author to answer the question. In the author's opinion, the first reason for the confusion of the above interpretation is the difference in the selection of the materials for judging slips and slips. In the past, scholars did not pay enough attention to it, respectively in their own research of the materials, the confusion of interpretation resulting from the fact that there is no small difference in the materials of the different levels of the judgment of the slips and slips, which have not been paid enough attention by scholars. The second cause of confusion in the researchers' interpretation is the difference in research methods. Phenomenology and typology are the main research methods of the above scholars. The advantages and disadvantages of the two methods also lead to the difference of the research conclusion. With the above reflection, the author tries to make his own interpretation. The author finds that the concepts of "according to emotion", "according to law", "both emotion and law" to explain the basis of judicial decision as a whole in Ming and Qing dynasties have their rationality, or they have peeped into a facet of judicature in Ming and Qing dynasties. However, the judicial aspect of Ming and Qing dynasties is more comprehensive and true than a single word can be summarized. The interpretation of Ming and Qing judicial adjudication based on this problem can not be separated from the different types of judicial cases in Ming and Qing dynasties, and this kind of investigation shows us the dual facets of Ming and Qing judicature: in civil cases, the basis of adjudication is the blending of love and law. Giving priority to emotion; In a criminal case, it is the form according to law and the concurrence of the crime of love.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D929
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10 姚e
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