中国衡平司法传统论纲

Discussion and Compendium of the Chinese Tradition of Equity Judicature

饱受儒学浸染的中国古代司法官 ,在泛伦理主义的社会主导性价值观念的支配下 ,采取务实主义的态度解决现实生活中的纠纷 ,以应对法律与社会脱节和疏离的矛盾。为了追求司法衡平 ,司法官总是尽可能全面地权衡他所面临的社会条件 ,作出最大限度地达到社会和谐与道德圆满的判决。中国传统司法的衡平理念和制度运作 ,反映出传统社会独特的纠纷解决机制及其与建构法律秩序之间的深刻联系。而且 ,中国社会自身的语境对其司法和法的成长及其表现形态具有决定性的影响 。

Ancient judicial officers in China who were completely influenced by Confucianism settled the disputes in reality with the attitudes of pragmatism and the prevailing value of pan-ethic in order to deal with the conflicts concerning the disjointedness and alienation of law and society. For pursuing the judicial equity, judicial officers always tried their best to comprehensively weighed the social condition they were confronted with, and made a judgment that reached the harmony of society and satisfactory social morality. The Chinese traditional judicial equity and the system operation demonstrated the dispute settling mechanism particularly possessed by traditional society and its deep relationship with legal order construction. The language context of Chinese society itself has decisive effects on its judicature, the development of law, and the conformation thereof. The historical condition for the equity judicature does not disappear completely.