宋代司法传统的叙事及其意义——立足于南宋民事审判的考察

Judicial Tradition of the Song Dynasty and Its Significance:From the Perspective of the Trial System

中国的成文法传统极为悠久,其典型特征是:司法审判,依法判决。尽管在儒家人伦文明形态下,法官在审理刑民案件时,经常考虑天理与人情,即"参酌情理",但这只是对"依法给断"原则的补充,而不是颠覆,更不是"卡迪司法"。宋代的民事审判,坚持书证为裁判田宅交易纠纷之重要证据、同一类案件适用同一类规则、剖判曲真则依条法的三大原则,要求民事案件审结后,必须给当事人"断由"。宋代的法官在处理社会各阶层无所不在的民事纠纷时,分清是非.以法律条文及法意为依据进行判决是其首要的准则。宋代的司法传统中,法律作为知识与客观准则得以在民事诉讼的审理中发挥重要作用,且有了生长的空间。所以说宋代司法传统是典型的成文法传统。

Modernity does not necessarily go against tradition,but takes on bearing of inheritance and development.The ancient China was a country with a long tradition of written laws.The typi- cal features of this tradition are:judicial trial and judging by law.In the wake of Confusion culture,judges would take common law and people's feelings into consideration when trying criminal and civil cases.In spite of that,they in civil trials would abide by three principles:'providing written proof as primary evidence in trying disputes concerning land transactions,ap- plying same rules to the same categories of cases,and judging the rights and wrongs by laws and stipulations'.It was required that an account of the court action should be given to the parties involved when a civil case was settled.It was insisted that all civil disputes should be settled according to law or its spirit.Being legal expertise and an imperative principle,law played an important role in civil litigation,so to earn much space for further development.