明代息讼制度探究——以判牍为中心的考察

An Investigation on Pan-du in the System of Litigation in Ming Dynasty

和解息讼是明代常见的诉讼程序终结方式,但明律令体系中并没有息讼程序的明确规范。通过对《盟水斋存牍》和《折狱新语》中近百个息讼判词的解读,梳理息讼案件基本事实、判决理由与判决结果,旨在恢复构建明代的息讼制度。作为一种审判程序终结制度,明代府县的户婚田土债等民事案件和笞杖以下(含杖刑)轻微刑事案件均可适用。明代已经形成一套比较完整的息讼程序,息讼请求必须由双方当事人共同提出,不允许单方撤诉。息讼案件仍以普通审理程序审理并查明基本事实,息讼的最终裁断权属于法官。此外息讼案件也须上报复核。总体而言,明代息讼是当事人处分权与法官审判权相结合的产物。

Dropping a lawsuit with reconciliation is the common way to end proceedings in the Ming Dynasty,but there is no clear standard of its procedure in the system of litigation. Through the interpretation of nearly one hundred liturgical judgments in the ' Union Water Slips' and ' New Words in the Dement',the paper has categorized the basic facts,the reasons and the verdicts of the litigation cases and restored the litigation system of the Ming Dynasty. As an ultimate system of trial proceedings,it can be applied in the Ming Dynasty prefectures and other civil cases as well other minor criminal cases. The Ming Dynasty has witnessed a relatively complete set of procedures of dropping the lawsuit. The claims must be jointly proposed by the parties and unilateral withdrawal is banned. The case is still conducted via ordinary proceedings to investigate basic facts,and judges have the final decision of the litigation. In addition,the case must be reported to superiors for review. In general,the lawsuit dropping system in Ming Dynasty can be considered as a combination of the parties' right of adjunct and the judge's jurisdiction.