【作者】 杜维霞；

【导师】 吴琦；

【作者基本信息】 华中师范大学 ， 中国古代史， 2014， 博士

【摘要】 作为知识群体,讼师在明清时期表现出强烈的知识社会化、专业化倾向,不仅在专业技能与组织构成上逐步走向专业化,且与国家、社会及其他群体积极互动,塑造了特定的社会形象,成为考察明清社会变迁的重要视角。讼师并非健讼社会产生的根源,却是健讼社会的产物和表现。明清讼师构成较为广泛,不仅有落魄读书人,也有“衣冠子弟”,宗室、官员、胥吏等有时也会化身为诉讼背后的讼师。利益是讼师从事法律服务的本质驱动力,讼师的整体收入也远高于一般社会大众。明清讼师分布的区域性较强,长江中下游地区更为集中多见。专业化是明清讼师的诉讼特征。他们凭借着读书人特有的知识储备和文化素养,致力于为诉讼当事人提供法律服务,形成了具有专业素养的讼师群体。其参与诉讼活动的内容,除了基本的教人诉讼、代写词状,还拓展到为当事人制定诉讼策略、处理诉讼关系、代打官司等等。讼学文献的涌现与传播,是讼师技能专业化的重要结晶。构建社会资源网络是讼师在从业活动中拓展生存空间、谋求群体地位的重要方式,是讼师走向专业化的关键环节。讼师内部的竞争与联合现象极为常见,部分地区的讼师甚至还组建有类似于行业组织的社会团体,诸如破鞋党、仓颉会、作文会、文昌会等,体现了讼师内部自觉的组织化倾向。讼师生活在息讼与准讼的社会环境中,其与官员有着内在的对立性,但二者的利益联合亦较常见。利益纽带的维系下,讼师与胥吏、衙役、代书、保长及诉讼当事人等过从甚密,其纠结多方合力完成助讼活动并共同赢利甚至成了明清诉讼活动的通行模式。讼师社会形象的塑造是其“职业”地位被公众认可的外在表征。讼师的诉讼表现衍生出讼师与讼棍的二元形象,但历史记忆呈现的多为唯利是图的讼棍,这是官方强势话语权的结果。讼师的诉讼活动与儒家的“息讼”思想背道而驰,诉讼立场亦违于“学而优则仕”的初始理想,寻求与儒家及官方思想的契合成了其内心救赎的方式,也促进了讼师群体意识和从业意识的逐步形成,使得讼师群体在专业化进程中向前迈进了一步。但官府对司法使用的专利性,限制了其近代化进程,注定了其夹缝生存的历史命运。讼师的专业化发展过程,融汇在地方社会潜移默化的变迁中。讼师对明清时期法律常识的传播、诉讼技巧的提炼及司法审判体系的制度化形成,有着重要影响,亦为近代律师职业化奠定了坚实的基础,有一定标准并得到社会认可的职业群体已初具雏形,“民国初期的律师,多来源、演变于清末的讼师”。讼师与地方社会的互动,展现了地方社会的重大变迁。更多还原

【Abstract】 The attorneys at law were a part of intellectual group.They showed a strong inclination of socialization and specialization during Ming and Qing Dynasty. They gradually moved towards specialization on the lawsuit skills and organization. Even more important,they interacted with the country.society and other groups that the particular society image was portrayed.It can be an important angle of view to study the changes of the society of Ming and Qing Dynasty.The attorneys at law were not the roots but the products and the expression of plenty of lawsuit. During Ming and Qing Dynasty, the composition of the attorneys at law was extensive. There were the children of official’s family, the related lineally to the Royal Family, the official and petty officials, they all possibly became the attorneys at law. Interests was the basic driving force for the attorneys at law to engage legal service. Their income was better than the ordinary people. They were characterized by the striking geographic, mainly in the lower and middle reaches of the Yangtze River.Specialization was the lawsuit character of the attorneys at law. They provided legal services to the parties litigant and form a specialization group by their peculiar knowledge and culture. In judicial proceedings,they not only taught others how to file a lawsuit or helped others write statement but also gave advising for the parties litigant, greased the wheels and acted for the parties litigant to engages in a lawsuit,etc. Litigation documents that emerged in multitude and being diffused was the important achievements of the attorneys at law’s specialization.Building social network resources is the important ways to expand the living space and seek group position for the attorneys at law. Various forms of competing and union were in the group of attorneys at law. The attorneys at law in some areas even organized social organizations that like association,for example, the Poxie party, the Cangjie Society,the Writing Society and the Wencang Society.They showed the tends of systematism.Living in the surroundings of trying to destroy lawsuit and administering justice, the attorneys at law was antithetic to the official,but sometimes they also showed associated for interest. Common interests allied the attorneys at law, petty officials, yamen runners,the men who writing statements for the parties litigant, the small official in town and country and the parties litigant,etc.All these worked together and got common benefits in the judicial proceedings.It even became a common model of legal proceedings.The construction of the attorneys at law society image is the exterior token of approved status. The attorneys at law projected different images including an attorney at law or a pettifogging lawyer in legal proceedings. But there are more mercenary pettifogging lawyers among old records because of the official opinions. The action of the attorneys at law is in a direction away from the idea of "prevent litigation" in the Confucian School. Their principled stand is far removed from the ideality of being a official by learning. They made efforts to seek for the correspondency of the Confucian School and official opinions.lt promoted a formation of group consciousness and practicing consciousness.The group of the attorneys at law tep forwards in the specialization process. But they can’t change their fate in adversity due to the official judiciary powers.The specialization process of the attorneys at law was in the changes of the local society. The attorneys at law promoted the communication of fundamental legal knowledge, litigation means and the systemization of the judicial adjudication. It also lays a solid foundation for the Professionalization of modern lawyers. There is an acknowledged emphasis on the group specialization.The lawyers in the Republic of China was basically based on the attorneys at law who lived in the end of the Qing Dynasty.The changes of local society was shown by the interaction between the attorneys at law and the local society.更多还原