从分家继产之讼看清代的法律与社会——道光、光绪年间陕西相关案例分析

Family-Breaking and Property Inheritance:Law and Society in Shenxi in Daoguang and Guangxu Periods

在清代 ,有关继承的纠纷主要发生在家产继承方面 ,通常表现为围绕无子孙家庭的立嗣和分家析产两个问题所产生的矛盾 ,妇女的继承问题在其中也占有一定比例。这些纠纷在当时地方官员的判牍中大量出现 ,一方面体现了社会的发展和观念的变迁 ,另一方面也体现了法律援助的力量。在制定法主要为刑法的情况下 ,地方官员在民事纠纷的审理过程中参考民间习惯 ,并在推理过程中应用情理原则 ,具有积极意义。而制定法也并非一成不变 ,在社会发展的推动下 ,它的一些内容也相应做出了调整 ,这在法律与社会的互动关系中是一种符合时代要求的推动力。

During the Qing Dynasty, the inheritance disputes often took place when family property inheritance occurred. It becomes more critical with families without offsprings or when women's right were involved. Those inheritance disputes can be seen in great numbers in local officials' daily administration, which contends the social development and the change of conception on one hand, and people's view on legal aid in lawsuit on the other. Since the written laws at that time were mainly criminal laws, the local officials often handled these civil lawsuits by referring to local customs and individual emotion. The law establishment was also an on-going process accompanying the social change, which represents the positive interaction between law and society.