《周易》讼卦与行政诉讼

The Song Hexagram in the Book of Changes and Administrative Litigation

讼卦之道不仅适用于现代民事诉讼,还适用于现代行政诉讼,这是因为讼卦九二《象传》直言“自下讼上”,西周已有行政诉讼雏形且行政诉讼与民事诉讼关系密切。讼卦对行政诉讼的基本态度是“中吉,终凶”,提倡无讼和止讼,反对好讼和穷讼。初四、二五以及三上构成三对诉讼,体现讼卦对行政诉讼的具体态度。讼卦对行政诉讼有所启示,在原告方面,“不永所事”意味着讲明事理后要及时止讼,“归而逋”意味着在败诉后要反省自身,“食旧德”意味着诉求要本分;在被告方面,“复即命渝”意味着败诉后要遵从判决,“讼元吉”意味着正当行使权力,“或锡之鞶带,终朝三褫之”意味着反过来公诉原告,可能符合一时政策,但最终会被否定;在法官方面,“讼元吉”意味着处理行政争议,需要听取双方意见,并且不要牵扯自身利益。

The hexagram Song[■,Contention,6]is not only applicable to the situation of modern civil litigation,but also to the situation of modern administrative litigation.This is because the Xiang zhuan(Commentary on the Images)of the second line of hexagram Song says,“the person below sues the person above”.There was already an embryonic form of administrative litigation in the Western Zhou dynasty(1046-771BCE),and administrative litigation was closely related to civil litigation at that time.The basic attitude of hexagram Song to administrative litigation is manifested in the hexagram statement“auspicious in its centrality,ominous in the end”,advocating no litigation and ceasing litigation,and opposing fondness for litigation or dogged pursuit of litigation until the bitter end.The first-fourth lines,the second-fifth lines,and the third-sixth lines constitute three pairs of lawsuits,which embody the specific attitudes of hexagram Song towards administrative litigation.Hexagram Song has enlightening messages about administrative litigation to some extent;for the plaintiff,“do not persist in litigation”(不永所事)in the bottom line statement means stopping litigation in time after clarifying the affairs,“return and flee”(归而逋)in the second line statement means reflecting on oneself after the failure of defense;“hold on to past gains”(食旧德)in the third line statement means that the claim should be reasonable.For the defendant,“return,obey the court decision”(复即命渝)in the fourth line statement means accepting the judgment after a losing case,and“litigation,especially auspicious”(诉元吉)as the fifth line statement means wielding power fairly;“the princes bestowed the title of gentry,three times bestowing and three times revoking”(或锡之鞶带,终朝三褫之)as the top line statement means that the prosecution of the plaintiff may be in accordance with the temporary policy,but it will eventually be denied.For the judge,“litigation,especially auspicious”as the fifth line statement means it is necessary to hear different opinions and not put one's own self-interest at stake while dealing with administrative dispute.