宋代亲属财产诉讼中的“利益衡平”艺术及其当代借鉴

Judicial Art of “Equitable Interest”and Its Contemporary Reference in the Property Litigation of the Relatives in Song Dynasty

在社会变动情势下,宋代亲属间争财竞产,无日无之。宋代法官们在涉及居丧嫁娶、奁产性质、不孝子免惩、田宅交易、户绝立嗣继产、遗嘱继承等亲属间财产诉讼中,能够根据具体个案事实,在综合考量法意法理、民意民情、风俗习惯、血缘伦理的基础上,以"利益衡平"的司法艺术与精神,追求个案的实质正义和判决的社会良性效果,解决了法律僵化滞后与社会变动不居之间的张力,较为彻底妥当地化解了亲属间财产纷争,维护了血缘伦理亲情与家庭和谐。宋代法官"利益衡平"的司法艺术品质,是其实践理性与经验智慧的结晶,体现的是宋代法官在权变精神涵养下的价值判断和能动创造性,对当代民事财产纠纷的化解,能够提供可资借鉴的历史本土法律文化资源。

There were many property litigation among the relatives every day under the background of changeable situation in Song Dynasty. Involving property litigation among relatives, such as marriage in mourning period, trousseaux nature, unpunished disobedient child, transactions of farmland and residence, inheriting property about successor in the family without son, testamentary succession, Judgers in Song Dynasty achieved substantive justice in the individual cases and positive social effects, creatively solved the tension between inflexible and lagged law and changeable society, and at last thor- oughly and properly resolved property disputes between relatives, maintained blood relationship ethics and family harmony, depending on the facts of the case, on the basis of comprehensive consideration of the legal spirit and jurisprudence, public sentiments, customs and habits, ethics blood, and through judicial art and spirit of ＂ equitable interest＂. Judicial artistic quality of ＂equitable interest＂ in Song Dynasty was the crystallization of its practical ration- ality and wisdom derived from the experience, reflected the value judgments and dynamic creativity of judgers in Song Dynasty under the cultivation of flexible sprits, and was able to provide law and cultural resources of the native Chinese history in resolving property disputes in civil contemporary.