论息讼思想及其对谱牒的影响

Research on Suppression of Litigation and Its Influence in Family Archives

无讼是儒家追求的社会理想,而息讼既是实现无讼的政治举措,又是落实儒家的德治、礼治等政治理念的治理策略。息讼的推行以下述因素为基础:朝廷倡导无讼是其官方背景,缺乏独立的司法机构和官员缺乏法律素养是其制度条件,聚族而居的熟人社会是其民众基础,刑事民事不分、重秩序维护和轻权利保障是其法律基础。在谱牒中,息讼对谱序、家法族规、契约、图考等方面都有重要影响。在当代,息讼在提高司法效率、节省诉讼成本、化解社会矛盾等方面,仍然具有正面意义。

The non-litigation used to be the social ideal pursued by the Confucianism,and the suppression of litigation was both a political means of achieving the non-contentious ideal society and a governance strategy of realizing the ideal of rule of virtue.The suppression of litigation had its social and legal basis:The imperial court advocated non-litigation out of its official origin,a short of independent judiciary and legal literacy of the officials were in accordance with its system conditions,a society of acquaintances from a same clan clustering together was its people's foundation,and the non-distinction between criminal and civil affairs and greater attention to order maintenance and less protection of individual rights formed the basis of Law.In the family archives,the suppression of litigation had essential effects on genealogy,family rules,contracts and plans of litigation and so on.In contemporary society,it still has the positive values in the aspects of improving the judicial efficiency,saving the litigation costs and resolving the social contradictions.