情理断案、调解与简约治理--以陕甘宁边区的婚姻司法为中心

Reasoning,Mediation and Simplified Governance--On the Marriage Justice in the Shaanxi-Gansu-Ningxia Border Area

陕甘宁边区的法制在中国近代法制史中占据重要地位。与南京国民政府模仿西方法治的“据法审判”不同,边区有意识地探索与中国国情更为吻合的司法之路。以边区的婚姻司法为例,由于法律规定的婚姻自由原则相对于边区社会来说过于超前,在实践中引发了不少始料未及的问题,边区在改进立法的同时,也积极寻求司法中的变通方式。在判决中运用情理做出判决的“情理断案”,以及推广相对灵活、不拘法律条文的调解模式,即是边区在司法中进行变通的产物。“简约治理”模式符合当时精兵简政的潮流,以有限的司法资源维持了边区社会秩序的稳定。它既体现了边区对中国古代司法传统的继承和超越,也体现了对南京国民政府司法模式的反思与改进,是中国共产党探索新型法制道路的可贵尝试。

The legal system in the Shaanxi-Gansu-Ningxia border area occupies an important position in the history of legal system in modern China.Different from the practice of“judgment according to the law”adopted by the Nanjing National Government that imitated the Western rule of law,this border area consciously explored a judicial path that was more in line with China s national conditions.The marriage justice in the border area is an example.Because the principle of freedom of marriage prescribed by law was too advanced than that of the rural society,it had caused many unexpected problems in practice.While improving the legislation,the border area also actively sought alternative ways of judiciary.“Using reason to judge cases”as well as the promotion of a relatively flexible and legal mediation mode was the product of judicial flexibility in the border area.The simplified governance model was in line with the trend of streamlining the government at that time,and maintained the stability of the social order in the border area with limited judicial resources.It not only reflected the inheritance and transcendence of the ancient judicial tradition of China in the border area,but also showed the reflection and improvement of the judicial model of the Nanjing National Government.It was a valuable attempt by the Communist Party of China to explore a new legal system.