明清法律规则中的利益平衡

The Balance of Interests Reflected in the Ming and Qing Dynasties' Legal Rules

明清时期,无论是像"欠债还钱"和"杀人偿命"这样的天理,还是像"找价"和"蹊田夺牛"这样的普通规则,都体现出利益平衡的共有原则。利益平衡的原则不仅能够将人身利益与财产利益沟通,而且还显示出细故案的处理原则与命盗案并无二致,不同种类的规则在利益平衡的共有原则之下得以统一。因此,以往研究中对中国古代法规则性因素的忽视和否定两种倾向都应该加以修正。

A general principle of the balance of interests not only embodied in the natural reason such as ＂monetary obligation should be paid＂ and ＂he who murders pays the forfeit of his life＂, but also applied in common rules such as ＂bargining of land＂ and ＂capture the cattle trample into the field＂ during the Ming and Qing Dynasties. The principle communicated the personal interests and property interests, shown the compatibility between dealing trivial matter or life and theft case. The different kind of rules could be unified under the principle of balance of interests. Hence, the two tendencies of negating and neglecting the normative elements of traditional Chinese law should be amended.