南宋的民事裁判:同案同判还是异判

Civil Judgments in the Southern Song Dynasty:Similar or Different Verdicts for Similar Cases

遇到同类或同一案件时,宋代的民事裁判能否超越时、地、人的不同,达到前后判决的一致?就立嗣与分产来说,南宋中晚期20多年间,五位来自三路、四州府、五县的审理者,在东至两浙东西路,北至京西南路和淮南西路,还有中部的江南西路和荆湖南路等广大地域,作出相当一致的判决。一致的原因,首推依法而判,反映出南宋的立法相当周严,以及审判者受到制度的约束,如要求援引法条。第二是审理者所用的道理和《论语》、《春秋》等经义,大都简单、普遍且符合民情,发挥着辅助而非抵触法律的作用。第三是讲究逻辑推理。第四是审判的目的相同。第五是效法相同的儒学或司法名公,如范仲淹、张詠。此外,他们彼此是师生、朋友或同门(如程朱理学),参用彼此的观点和书判,阅读相同的法律名著、儒学经典和科举用书等。这些跟刑事裁判达成一致的因素几无两样。

In treating similar cases,could Song civil judgments achieve consistency across differences in time,place and people?In the span of twenty years in the mid to late Southern Song,five judges from five counties,four prefectures and three circuits(a vast expanse stretching from Liangzhe Circuit in the east to Jingxi South Circuit and Huainan West Circuit in the north,as well as Jiangnan West Circuit and Jinghu South Circuit in the central region)arrived at quite consistent judgments on appointment of heirs and family property settlement.There are a number of reasons for such consistency.First,the judges'rulings always accorded with the law,reflecting the legislative sophistication of the Southern Song Dynasty.They were also constrained by the system,as for instance in the need to cite legal provisions.Secondly,the judges' principles and their use of classical texts such as The Analects of Confucius and The Spring and Autumn Annals were simple,universal and in accord with popular sentiment,thereby playing a supporting rather than a contradictory role in adjudication.Thirdly,the judgments stressed logic and reasoning.Fourthly,all verdicts had the same aim.And finally,the judges modeled themselves on celebrated Confucianists or judicial figures,such as Fan Zhongyan and Zhang Yong.Moreover,as the judges were usually each others'teachers,pupils,friends or classmates(as in the Neo-Confucianism of the Cheng brothers and Zhu Xi),they referred to each others'ideas and judgments and read the same famous legal texts,Confucian classics and works tested in the imperial examination.These elements are virtually the same as those leading to the consistency of judgments in criminal law.