浅析明清家事诉讼中的原情断案及其特点——以明清判例判牍为中心

On the Original Emotion Judgment and Its Characteristics of the Ming and Qing Dynasties Family Litigation——Case Verdict as the Center

原情断案是中国古代司法文明的亮点之一,其内容重在考量法与情的权衡。通过对明清时期家事诉讼相关案例,主要包括亲属间人身相犯案件、财产相犯案件分析,发现明原情断案在家事诉讼运用中具有注重司法过程中的准情酌理、追求法律效果兼顾社会效果及亲属间民事纠纷判决不确定性的特点。

The original emotion judgment is one of the highlights of the judicial civilization of ancient China , which content focuses on the consideration of law and affection . Through relevant case of Ming and Qing Dynasties family litigation, mainly including the relatives between body made the case analysis, the property made case, raw emotion judgment has found that science, the pursuit of both social effect and legal effect between relatives of civil disputes verdict uncertain features in the process of attention to the judicial discretion in the use of quasi love family litigation.