论南京国民政府时期亲属、继承案件裁判中情理法的交汇

The Convergence of Qing,Li and Fain Judicial Judgement:Focusing on Family and Inheritance Cases in the Nanjing Nationalist Government Period

南京国民政府时期,随着民法典亲属编、继承编的颁布,传统家族制度发生了剧烈变革。由于民法典诞生背景特殊,立法显得超前,社会相对滞后,于是司法主体在民法文本与社会实际之间自觉充当起缓冲角色。具体到亲属、继承具体案件的审理中,南京国民政府最高法院尽量做到:婚姻案件裁判坚持男女平等;身份案件裁判呼应社会实际;抚养案件裁判兼顾情理;家族案件裁判尊重习惯;法律与社会效果尽可能切合。无论是民法典阙如的北京国民政府时期,还是民法典业已颁行的南京国民政府时期,司法主体均尽可能地根据社会实际,遵循法条、习惯与条理斟酌运作的程序,灵活把握情、理、法尺度,适时作出司法解释,尽可能地顺应时代精神,兼顾社会发展,弥补立法过于刚性或超前的不足,实质保护弱势群体的权益,力求法律效果和社会效果的最大化。民国民法典的颁行,并不排斥司法实践中情、理、法的兼顾,至今不失其借鉴价值。

During the period of the Naitonalist Government in Nanjing, dramatic changes took place in the traditonal Chinese family system with the promulgation of the chapters concerning the legal relations between relatives and the issue of inheritance in the civil code. Since the then civil code was born in a special historical period in which the ideas and principles it was based on were ahead of the time and social development, the judicial system had to act as the buffer between the code and the social reality. Therefore, when family and inheritance cases were decided, the court tried to adopt such principles as follows: to emphasize the equality between men and women when the marital cases were judged;to take the social reality into consideration when cases concerning the identity were judged;to take into account qing 情(literally human relations and feelings) and li 理(literally reason) when cases involving the bringing up and educating the children were judged;to respect the conventions when cases involving disputes within and between families were judged;and to align the legal effect with the social effect. Whether it was in the Beijing Decade when there was no civil code or in the Nanjing Decade with a civil code, the judicial system of the Repulic of China tried to strike a balance between fa 法(law), li and qing by taking the social reality into consideration and offer judicial interpretations if necessary. Following the development of the times and the Chinese society, this pratice can overcome the inadquacies caused by the rigidity of the law and the gap between the law and the social reality, effectively protect the rights and interests of the vulnerable group and maximize the legal and social effects. Such a balance based on the promulgation of the civil code has significant implications for the current judical practice.