【作者】 章育良；

【导师】 李交发；

【作者基本信息】 湘潭大学 ， 诉讼法学， 2007， 博士

【摘要】 1840年鸦片战争以后,西方列强凭借坚船利炮,相继侵入中国,近代中国的经济关系、政治结构、文化意识都发生了巨大变化。正是在近代中国社会的变迁过程中,面对西方诉讼文化的尖锐挑战,中国传统诉讼文化走上了艰难而曲折的转型之路。可以说近代中国诉讼文化的发展变革过程,是一个传统诉讼文化与西方诉讼文化的冲突过程,也是中国传统诉讼文化迎接挑战,扬弃自身,进而实现创造性转换的过程。清末诉讼文化转型的内在机制是基于中国近代社会政治、经济、文化变革的需求,而这种需求往往表现为压力和危机,进而转化为文化转型的动力。没有这种需求的牵引和推动,清末诉讼文化是不可能由传统向新型文化转型的。现代文化转型往往是以理论建设、宣传发动为先导,以开放、会通为条件。近代传播媒介——报纸、新式学堂、翻译和出版对西方法律文化的传播发挥了重要作用;西方列强在租界设立的会审公廨固然损害了中国的司法主权,但作为展示西方法律文化的窗口,对中国人了解西方诉讼文化也不无意义。在清末中国同西方法律文化的接触过程中,日本是沟通中西两种法律文化的桥梁。清末诉讼文化转型的程度取决于清朝统治者、司法主体和知识精英的实际作用。正是在上述综合因素的作用下,开启了清末十年的变法修律运动。作为近代诉讼文化转型的起点,清末修律促使传统诉讼制度文化、诉讼观念文化、诉讼实践文化发生了整体性的变革。从诉讼制度文化上看,新置司法机构、新定起诉制度、新设审制制度、新创律师制度;从诉讼观念文化上看,皇权由无限向有限转变;家族本位逐渐为个人本位取代;平等原则在立法中初步确立;在司法实践中,行政与司法相分离,民事与刑事相分理。法官们利用已有的零星程序方面的规定,如《各级审判庭试办章程》,结合尚未生效的民事诉讼法律和刑事诉讼律的相关规定。这从直隶、奉天各级审判厅的司法实践中可以得到证明。本文力求在充分占有史料的基础上,尽量清晰地描述清末诉讼文化转型的轨迹,进而揭示诉讼文化转型的内在机制和外部条件。希望对我国当下的诉讼文化建设,提供一些有益的借鉴。更多还原

【Abstract】 The western countries invaded into China with their well-equipped weapons after the Opium War in 1840, the modern Chinese economical relations, political structure, cultural consciousness all had a huge change. Facing the incisive challenge from western lawsuit culture, Chinese tradition lawsuit culture had stepped onto a difficult and winding reforming road precisely in modern China society’s vicissitude process. It is would be said that the developing and transforming process of modern Chinese lawsuit culture, is a process traditional lawsuit culture conflicting with western lawsuit culture, and also is a process the tradition lawsuit culture meeting the challenge, sublating and then realizing the creative transformation.The internal mechanism of lawsuit culture reformation in late Qing dynasty was based on the transformation demand of politics, economy, culture in modern Chinese, which often displayed as the pressures and crises, and then transformed as the cultural reforming power. Without the impetus of the demand, lawsuit culture reformation in late Qing dynasty would be impossible.Modern culture reforming often takes the theory construction and propaganda as the forerunner, takes opens and syncretization as the condition. The modern media that newspapers, the new style schools, the translation and the publication had played a vital role in disseminating the western law culture; The mixed courts set by western countries in the foreign settlement had no doubt harmed Chinese judicial sovereignty, but as the window demonstrating the western law culture, was also insignificant to the Chinese to understand the western lawsuit culture. Japan was a bridge linking up the Chinese and the western law cultures when the Chinese contacting with the western in late Qing dynasty. The degree of lawsuit culture reforming in late Qing was decided by actual function of the rulers of Qing Dynasty, the judicial subjects and the intellectual elites.As the beginning of modern lawsuit culture reforming, the amendment of laws in the last ten years of Qing dynasty was launched precisely under the affect of factors upon, and it promoted traditional lawsuit institutional culture, ideas, practice to reform entirely. In lawsuit institutional culture, there were the judicial organizations, prosecution system, auditing system and barrister system that were all newly created; In lawsuit ideas culture, the imperial authority changed from absolutely infinite to relatively limitedly, the family standard gradually substituted for individual standard, the equal principle was initially established in the legislation; In the judicial practice, administration separated with judicature, civil and criminal lawsuit were treated separately. Judges already had used the fragmentary stipulation about procedure with correlation stipulations in civil law and criminal law which not yet been taken into effective, and separately developed a set of procedure about civil and criminal Litigation. It could be proved by the judicial practice of trial courts of Chili and Fengtian.The article makes every effort to hold as much historical data as could, based on this, as far as possible clearly describes the lawsuit culture reforming path of the late Qing, then promulgates the internal mechanism and the external condition of lawsuit culture reforming. It is expected the study would benefit the reconstruction of our country’s lawsuit culture nowadays.更多还原