论宋代亲属财产争讼的司法艺术风格与精神

On the Artistic Style about Property Disputes among Relatives in Song Dynasty

面对亲属间财产争讼频繁的社会变动情势,宋代法官擅于运用儒家人伦情理铸造亲民形象,在司法调解时重视以法促调、释法说理与解疑工作,以感化争讼者接受调解以息讼;当儒家人伦情理对于亲属间财产纠纷调处无效时,又不囿于情理,而是在证据定谳事实基础上转而依法判决。宋代法官这种能调则调、当判则判、调判结合、礼法并重的化解亲属间财产争讼的司法艺术风格与精神,无疑为我们认识宋代司法的近世化转型提供了一种崭新的视角,亦是对中国古代家产司法无确定性学说的一种纠偏,同时能对当下民事司法中轻忽依法判决、依赖强制性调解等问题的解决提供一定的历史镜鉴。

In the face of the frequent disputes about family property, the judges were good at using the confucian ethics to form an officially fostered man-of-the-people image in order to reclaim the interest-ed parties to accept the mediation. In addition, the judges paid attention to using the law to promote me-diation, explaining the law to reason things out and using the law to solve some doubts. When the confu-cian ethics can not mediate the disputes among family members for property, the judges were not stickler for ethical reason, but were determined to adjudicate according to law, which were based on legal facts decided by evidences. The artistic style and spirit of the judicature about family property in Song dynasty, in which the judges not only mediated as much as possible and adjudicated condignly, but also combined mediation with judgment and paid equal attention to the ethics and laws, unquestionably provided a new angle of view to better understand modern transformation in judicature in Song dynasty, and also rectified the wrong theory that the ancient Chinese judicature was not fixed. At the same time, the artistic style and spirit can provide a certain historical enlightenment and alert existing problems that the court do not pay attention to lawful judgment and rely on mandatory mediation in present judicial mediation.