【作者】 边媛；

【导师】 郭成伟；

【作者基本信息】 中国政法大学 ， 法律史， 2009， 博士

【摘要】 本文通过对于南宋时期民事诉讼制度的几个主要方面——诉讼观念、案件的受理、证据的分析运用、审判制度以及法官司法素养等的分析探讨,进而认为,南宋时期民事诉讼制度的实质在于对案件“圆满解决”的追求。本文共分为导论、正文五章、结论及附录八个部分。导论部分交待了选题的由来、研究现状及学术史回顾、本文的主要内容与创新之处及材料的使用。正文部分共由五章组成。第一章:南宋时期官民诉讼观之结构分析南宋时期民间好讼之风极盛,乃至亲属争讼、士人健讼的情形亦较普遍,并且,很多人为求胜诉不择手段,这些均与传统观念中贱讼的说法不符。从官府的立场出发,虽然不提倡兴讼,但是面对现实中无法回避的众多纠纷,亦采取了较为务实的态度,致力于案件的合理解决。而所谓贱讼的说法主要是出自当事人对于讼累的畏惧。至于官府所追求的无讼,则是指在解决具体案件的同时,提升当事人的道德境界,使其“无争心”,不再兴讼。第二章:词讼案件的受理官府不提倡兴讼,故对于受案采取了“不轻准”的态度,规定了一系列有关投词方面的限制。但是,相比之下,其对于越诉行为却是日渐宽容的。这种做法的目的不外是出于及时、合理解决案件的考虑。此外,南宋时期对于案件判决结果,允许当事人多次翻诉,直到判决实现最终公正、达到当事人满意的结果为止。但不论是对于投词、越诉抑或翻诉,都表达了官府对于词讼案件受理的态度:为了达到案件的“圆满解决”,无限纠错是允许的。第三章:证据的分析与运用为了达到案件“情实”,为公正判决打下基础,南宋民事诉讼中十分重视对于各种证据的分析与运用。在诸多证据种类中,书证拥有比较突出的地位。法官在检验证据时,不但有实践性的方式(如勘验、调查),还有非实践性的方式(对于各种常识的运用),并且对于非实践性的方式,表现出的依赖程度似乎更高。此外,在诉讼中,法官对于证据的调查、收集等工作表现得较为主动,从而“豁免”了当事人的“举证责任”。第四章:多元化的案件处理结果法官在判决时,并非单纯以国法为依据,为了达到案件的“圆满解决”,以情理判案的情形非常普遍。尤其是人情的引入,不但使判决易为当事人所接受,还兼顾了个案衡平的需要。同时,个案的处理过程也是法官贯彻道德教化、提升当事人道德境界,使其最终“无争心”的过程。再次,法官的判决在某些情况下还可能超越法律的立场,如对于判决执行效果的考虑、超越当事人的诉求判决、促成当事人达成和解而避免判决的使用、为恢复当事人之间的伦理亲情关系而不以是非为单纯追求。诸多处理方式的综合运用照顾了不同案件的具体需要,是案件得以“圆满解决”的关键性一环。第五章:法官的司法素养法官的司法素养是与其在诉讼制度中扮演的角色相吻合的。在南宋的民事诉讼制度之下,法官不只是以一种形象出现。其首先是朝廷命官,必须站在“公”的立场上行事;而面对当事人,又是民之父母,还需要有父母官的情怀。其次,在案件的审理过程中,法官一方面承担案件事实及证据的判断工作,另一方又要负责案件的判决,因此需要其具备丰富的常识及高超的法律专业技能;再次,法官还是衙门长官,还必须拥有驾驭群吏的能力,尤其是要防止胥吏弄奸对于司法公正的干扰。本文的结论中,再次阐述了正文部分的主要内容,指明了本文的核心观点:南宋时期民事诉讼的实质乃在于对案件“圆满解决”的追求。其次,还分析了追求案件“圆满解决”而引发的现实风险,如法的安全性受威胁、制度设计中对于法官个人素质的过度依赖以及官府公务负担的加剧等。最后,本文认为,西方法治前提下的民事诉讼追求的是“法律的完美适用”,而南宋时期的民事诉讼则以“案件的圆满解决”为归宿。附录部分包括三个表格:表一《名公书判清明集》所引民事法律、表二《名公书判清明集》作者名号表及表三《名公书判清明集》卷次条目表。更多还原

【Abstract】 This article aims to study the concept of lawsuit,acceptance of law case, application and analysis of evidence,multiple basis for judegement and attainments of a judge in Southern Song Dynasty. We point out that the essence of the lawsuit system in Southern Song Dynasty lies in the perfect settlement of the law cases.The article falls into eight parts, i.e. introduction, body( consisting of five chapters ),conclusion and appendix.The introduction deals with the choice of the topic, state of art and literature review, outline of the contents, innovative points as well as the limitations.The body part consists of five chapters.The first chapter analyzes the concept of lawsuit in the minds’officials and common people during Southern Song Dynasty.Folk lawsuit was very popular during Southern Song Dynasty with relatives and the educated involved in lawsuits. Moreover, many people would stop at nothing to win the lawsuit. These do not accord with…. Though the government did not encourage court cases, facing with many unavoidable disputes in reality, the government adopted a down-to-earth attitude to ensure the settlement of the lawsuits. The so-called is due to the fear of the party involved. The so-called“no lawsuit”which the government sought for, means to improve the parties’moral calibre in the process of settling a certain lawsuit so that they would not try to win any more.The second chapter is about the acceptance of lawsuit. The government did not encourage lawsuit by adopting a“not-rash- to-accept”attitude. Therefore, more strict limitations were prescribed to raise the standard of lawsuit acceptance. Comparatively speaking, however, it is all the more tolerant to bypass judicial powers. It is done out of the consideration of timely and reasonable settlement of lawsuits. Furthermore, during Southern Song Dynasty, a judgement can be appealed till the ultimate judgement is fair and perfect to the party involved. All these mentioned above reflect the attitude of the government towards the lawsuits, i.e. countless corrections are permitted in order to reach a perfect judgement.Chapter three deals with the analysis and application of evidence.In order to make sure that the case is judged based on facts, and set the scene for fair judgement, the analysis and application of evidence were stressed during the Southern Song Dynasty. Among different evidence, written evidence was given priority. In the examination of the evidence, a judge could either adopt on-the-spot approaches, such as inspection and investigation, or adopt off-the-spot approaches, i.e. application of common sense. What’s more, the judge depended more on the off-the-spot approaches. Besides, it is because the judges aimed to make judgement according to facts that they were more active when collecting and investigating the evidence, thus exempting the party from showing evidence.Chapter four is about multiple basis for judegement.When making a judgement, the judge did not rely solely on the domestic law; in order to achieve a perfect settlement, it was very popular for the judge to make a judgement in accordance with reason, which makes the judgement acceptable to the party involved. Meanwhile, the process of a particular case is a process of education in ethics and improvement of ethical attainments of the party. Besides, in some circumstances, the judgement could be outside the scope of law. For instance, when considering the effect of judgement implement, the settlement could be outside the party’s lawsuit appeal to bring both sides to reconciliation; when considering the affection between the blood relations, the matter of right or wrong was not not something the judge sought. The adoption of multiple basis for judgement aims to meet the particular needs of different law cases, which is the key to the successful settlement of lawsuits.Chapter five deals with attainments of a judge.The attainments of a judge accord with the role that a judge plays in lawsuit system. Under the civil suit system of Southern Song Dynasty, a judge is not only an image representation; he is, first of all, the official appointed by the imperial government, and he must take a stand on the fair side; for the party involved in the lawsuit, his role is to serve the interests of the people.Secondly, when hearing a case, the judge has to, on the one hand, make a decision on the facts and evidence, and on the other hand, decide the case. Therefore, the judge plays a role of both a jury and a judge, which requires not only common sense but also excelent skill in law. Finally, a judge is also senior officer in Yamenand he should have a good control over the Yamen officials to prevent them from interfering with the judgement.In the conclusion part, the authors restate the main contents and point out the key points of view, i.e. the essence of the civil suit during the Southern Song Dynasty lies in the perfect settlement of lawsuits. Secondly, we also analyses the risks which may arise from the perfect settlement of lawsuits. For example, the safety of law may be threatened; the system relies more on the personal quality of the judge and the burden it may bring to the public affairs of the government. Finally, we believe that, in the western law practice,“perfect adoptation of law”is what they puesue in civil suits, while in the Southern Song Dynasty,“perfect settlement of lawsuits”is the result in civil suits.The appendix contains three forms about《Ming Gong Shu Pan Qingmingji》更多还原