中国传统司法文化定性的宋代维度——反思日本的《名公书判清明集》研究

The Qualitative Analysis of the Chinese Traditional Judicial Culture Based on the Materials of the Song Dynasty—— Rethink about the Research by the Japanese on Minggong Shupan Qingming Ji

日本的宋史学者立足《名公书判清明集》，试图回应法律社会学家和清代法制史学者对传统中国司法文化的讨论。他们以听讼的定性为起点，衍生出深化法源理解、辨析司法官审判风格、构建“健讼”评价等三个研究方向。在法源理解上，由于“情…‘理”等内涵与功能具有多元性，法源之间也存在着重合、互利、或矛盾的复杂关系，需要细致辨别，才能精准定性某一司法官的审判特色。在司法官的审判风格上，地域性与群体性被用于解释他们之间的差异，然而这种解释面临三个风险：是否真的存在差异？地域性与群体性的解释之间是否存在矛盾？这种解释路径是否考虑到了历时性变迁与共时性的差异？在“健讼”评价上，由于唐代以前虽然诉讼多发、却未见“健讼”论述，所以“健讼”成为宋代以后诉讼文化的关键词，需要从司法官的主观意识领域入手，去寻找诉讼制度上的影响，以及《清明集》这类文献编纂成书的时代背景等。

Japanese historians of Song Dynasty, based on Minggong Shupan Qingming Ji （ 《名公书判清明集》）,attempted to respond to the discussion of the traditional Chinese judicial culture by the legal sociologist and researchers of legal history in Qing Dynasty. Starting from the debate on the character of adjudgment, they derived three research directions： deepening the understanding of the sources of law, distinguishing the judicial styles of some judges and constructing the evaluation of litigiousness. Firstly, it is necessary to identify the connotations and the functions of the sources of law like the ＂qing＂ （情） and the ＂li＂ （理） carefully, because not only they were plural, but also there were also complex relationships among them, just like coincident one, complementary one or contradict one. Secondly, it was considered that the judges had different trial characteristics, because the places of their birth were diverse and some of them belonged to the same school of thought. But there are three questions about this interpretation： Were there differences really？ Were there contradictions between the two reasons respectively with regard to the regionalism and the group nature？ Could this interpretation cover the diachronic changes and the synchronic differences？ Finally, although the people usually took legal proceedings before the Song Dynasty, these phenomena were not evaluated as the ＂litigiousness＂. The ＂litigiousness＂ became a key word of the legal culture from the Song Dynasty. The cause might be related to the subjective consciousness of the judges which was influenced by the litigation system, and the background of the compilation of QingMing Ji.