当代东方人“厌诉”质疑

A Research into the Distaste for Litigation of Contemporary Easterners

法律史学家们普遍认为东方人具有“厌讼”的传统心理 ,并认为现今东方国家(中国、日本等 )表现出的低诉讼率应主要归结于此。本文指出 ,对诉讼这一复杂社会现象的研究应兼顾文化和制度结构两个方面 ,造成东方国家低诉讼率的主要原因不在于东方人的“厌讼” ,而在于制度、社会机制的障碍 ,如诉讼在整个社会解决纠纷的机制中所处的地位不高 ,法官、律师人数不足造成的诉讼迟延、公众难以形成诉讼动机等 ;诉讼率是一个中立的指标 ,不应作为公众法意识、权利意识现代化的标尺 ;

The scientists of legal history generally consider that the easterners have the traditional psychology of distaste for litigation, and the low litigation rate of eastern countries nowadays should mainly boil down to this. This paper points out that the research on litigation, the complicated society phenomena, should give attention to both culture and system structure. The main reason of the low litigation rate in eastern countries is because of not only the distaste for litigation of easterners, but also the obstruction of system and social mechanism. For example, the social position of litigation is not high in the mechanism of whole society to solve knotting, and the lacking of judges and lawyers. The litigation is delayed and difficult to form the motive of litigation in public; the litigation rate is a neutral index, which should not be taken for the staff of public law consciousness modernization and adroit consciousness modernization.