传统权利的去精神化境遇:民国坟产纠纷的法律规范与司法实践

Separation of Spiritual Dimension from Traditional Rights:On Legal Regulations and Judicial Practice concerning Disputes over Tomb-related Properties

传统中国法律对坟产不同于其他财产的精神性权益给予了特殊保护。在以西方法律为移植对象的中国法律近代化过程中,法律中的坟产规范开始了“去精神化”转变,逐渐向一般财产趋同。不过在民国时期基层坟产纠纷中,地方民众仍主要诉求坟产的精神性权益。这一立法与社会的脱离在司法运行中表现出来的,是代表西方法律观念的司法官与承袭传统文化习俗的当事人之间的司法预期不同。由于基层民众仍秉持着对坟产的精神性权益诉求,法律上的中西文化冲突就转为中央立法与地方司法的冲突,在司法过程中表现为司法官与当事人的价值冲突。

Chinese traditional law provided the spiritual interests in tomb-related properties with special protection.In the process of transplanting the Western legal systems into China,the provisions for tomb-related rights underwent a separation of spiritual interests from the tomb-related properties:they began to be treated as other types of properties.However,in the disputes over tomb-related properties in the period of Republic of China,people in some regions still claimed their spiritual interests.The divergence between the legislation and the social realities came up in the judicial practice,for the judges who represented the Western legal ideas differed in legal expectations from the litigants who still stuck to Chinese traditional culture and custom.Due to local people's insistence on their spiritual interests in the tomb-related properties,the difference between Chinese culture and the Western legal culture turned into the conflict between the central and the local judicial levels,which was shown as the conflict in values between the judges and the litigants.