清代州縣訴訟內調解模式探析
發(fā)布時間：2018-08-31 16:14
【摘要】： 中國素有調解的傳統(tǒng),傳統(tǒng)調解制度已經(jīng)成為中國古代法律文化的基本特征之一。傳統(tǒng)調解經(jīng)過長期的傳承和積淀,形成了訴訟外調解和訴訟內調解兩種形式,在清代發(fā)展得較為完善。要了解清代州縣自理案件解決機制,訴訟外調解毋庸置疑非常普遍而重要,但是仍然有大批爭端,隨著呈遞告狀,而進入官方審理過程,在正式判決之前,都獲得了解決。本文主要以既不同于訴訟前的民間調解,也不同于純然官方判決的中間階段的州縣官府主持或者參與的調解結案案件作為研究對象,以案件是否進入訴訟程序為依據(jù),分析州縣訴訟內糾紛調解模式的特點及其大量存在的原因。 清代訴訟內調解模式是指民事或輕微斗毆糾紛進入訴訟程序后所采用的調解方式,包括訴內和解、撤訴、官批民調。清代訴訟內糾紛解決模式本身具有不同于其他糾紛解決方式的特點和存在基礎。其獨特的作用和特有的功能意義使之在清代糾紛解決實踐中被官方廣泛采用。本文對清代州縣訴訟內調解模式進行初步梳理和解析,并將這種糾紛解決模式放在與訴訟外調解和民事裁判相對照的背景下予以考察。 全文分為四部分:第一部分對清代訴訟內調解進行內涵探析,重新定義劃分調解方式。將最終采用調解和息因素結案的案件從訴訟程序的角度出發(fā),以調解因素是否進入訴訟程序,將清代調解分為訴訟外的調解和訴訟內的調解。 第二部分從歷史文化、制度、心理層面分析了清代訴訟內調解模式存在的基礎。分為四節(jié):第一節(jié)講述中國傳統(tǒng)文化是清代訴訟內調解模式的文化基礎。第二節(jié)說明清代的官員考核制度推動訴訟內調解。第三節(jié)分析調解息爭的制度基礎。清代對當事人訴權在身份和資格上、在程序上、在證據(jù)上、在受理時間上做出限制。第四節(jié)從心理層面上分析,訟累也促使雙方當事人接受調解。 第三部分將訴訟內調解與訴訟外調解相比較,探析其固有的特征。分為四節(jié):第一節(jié)講述訴訟內調解是一種在訴訟中進行的活動。第二節(jié)分析訴訟內調解在心理層面上對當事人的壓力,帶著強烈的強制色彩。第三節(jié)說明訴訟內調解的依據(jù)是理法并行,法律在訴訟調解中起著不可忽視的作用。第四節(jié)分析訴訟調解結案是州縣官審結民事案件的一種方式,具有法律上的執(zhí)行力。 第四部分講述清代訴訟內調解的功能和作用。第一節(jié)闡述了清代糾紛解決機制之間的相互關系,訴訟內調解和裁判在訴訟中具有的功能和實際發(fā)揮的作用,并且當事人與州縣官對這兩種解決機制所持的看法與態(tài)度。第二節(jié)分析訴訟內調解在與訴訟外調解和民事裁判相對照的背景下對糾紛解決的有效性。第三節(jié)說明訴訟內調解的局限性,產(chǎn)生于中國傳統(tǒng)文化的土壤之上與制度和意識緊密相連。 清代訴訟內調解在清代糾紛解決機制中發(fā)揮了不可忽視的作用,修正了訴訟外調解和直接裁判判決的一些缺點,在清代自理案件中被廣泛使用。清代州縣官府傾向采用訴訟內調解方式結案但并未使其轉化為一種官方書面制式制度,很大程度上這種運作模式還是出于一種習慣的做法。在訴訟過程中,選擇調解還是裁判,這兩種解決方式在當時都是開放性的,這種性質決定了一種局面的存在,即在解決同一糾紛時往往被同時選擇,于是二者之間有矛盾沖突也有著相互交織的關系。清代大量采用訴內調解方式結案是當時的時代背景、經(jīng)濟政治制度之下各方利益博弈的必然選擇。
[Abstract]:The traditional mediation system has become one of the basic characteristics of ancient Chinese legal culture. After a long period of inheritance and accumulation, the traditional mediation has formed two forms: extrajudicial mediation and intrajudicial mediation, which developed more perfectly in the Qing Dynasty. It is undoubtedly very common and important, but there are still a large number of disputes, with the filing of complaints, and into the official trial process, before the formal judgment, have been resolved. As the research object, based on whether the case enters the litigation procedure or not, this paper analyzes the characteristics of the dispute mediation mode in state and county lawsuits and the reasons for its massive existence.
Intra-litigation mediation mode in Qing Dynasty refers to the mediation mode adopted by civil or minor affray disputes after entering litigation procedure, including intra-litigation mediation, withdrawal of litigation, official approval and public opinion poll. Dispute settlement in Qing Dynasty was widely used by the government. This paper makes a preliminary analysis of the mode of mediation in litigation in Qing Dynasty prefectures and counties, and inspects it against the background of mediation outside litigation and civil adjudication.
The paper is divided into four parts: The first part is to analyze the connotation of mediation in Qing Dynasty and redefine the ways of mediation.
The second part, from the historical, cultural, institutional, psychological level, analyzes the basis of the Qing Dynasty litigation mediation model. It is divided into four sections: the first section tells that Chinese traditional culture is the cultural basis of the Qing Dynasty litigation mediation model. The second section explains that the Qing Dynasty official assessment system promotes litigation mediation. In the Qing Dynasty, the litigant's right to Sue was limited in status and qualification, procedural and evidence, and the time of acceptance.
The third part compares the mediation inside the lawsuit with that outside the lawsuit, and explores its inherent characteristics. It is divided into four sections: the first section describes that the mediation inside the lawsuit is an activity in the lawsuit. According to concurrent jurisprudence and law, law plays an important role in litigation mediation. Section IV analyzes that litigation mediation is a way for state and county officials to try and settle civil cases, with legal enforcement.
The fourth part talks about the function and function of mediation in litigation in Qing Dynasty. The first section expounds the relationship between the dispute settlement mechanism in Qing Dynasty, the function and actual function of mediation and Adjudication in litigation, and the views and attitudes of the litigants and county magistrates toward the two mechanisms. The third section illustrates the limitation of mediation in litigation, which originates from the soil of Chinese traditional culture and is closely related to system and consciousness.
Intra-litigation mediation in Qing Dynasty played an important role in the dispute settlement mechanism in Qing Dynasty. It corrected some shortcomings of extralitigation mediation and direct judgment and was widely used in self-handling cases in Qing Dynasty. To a large extent, this mode of operation is still a customary practice. In the process of litigation, the choice of mediation or adjudication, the two solutions were open at that time, this nature determines the existence of a situation, that is, in the settlement of the same dispute is often chosen at the same time, so there are contradictions and conflicts between the two. In Qing Dynasty, a large number of cases were settled through mediation in litigation, which was the inevitable choice of the game of interests between all parties under the economic and political system.
【學位授予單位】：西南政法大學
【學位級別】：碩士
【學位授予年份】：2009
【分類號】：D929;D925
本文編號：2215504
[Abstract]:The traditional mediation system has become one of the basic characteristics of ancient Chinese legal culture. After a long period of inheritance and accumulation, the traditional mediation has formed two forms: extrajudicial mediation and intrajudicial mediation, which developed more perfectly in the Qing Dynasty. It is undoubtedly very common and important, but there are still a large number of disputes, with the filing of complaints, and into the official trial process, before the formal judgment, have been resolved. As the research object, based on whether the case enters the litigation procedure or not, this paper analyzes the characteristics of the dispute mediation mode in state and county lawsuits and the reasons for its massive existence.
Intra-litigation mediation mode in Qing Dynasty refers to the mediation mode adopted by civil or minor affray disputes after entering litigation procedure, including intra-litigation mediation, withdrawal of litigation, official approval and public opinion poll. Dispute settlement in Qing Dynasty was widely used by the government. This paper makes a preliminary analysis of the mode of mediation in litigation in Qing Dynasty prefectures and counties, and inspects it against the background of mediation outside litigation and civil adjudication.
The paper is divided into four parts: The first part is to analyze the connotation of mediation in Qing Dynasty and redefine the ways of mediation.
The second part, from the historical, cultural, institutional, psychological level, analyzes the basis of the Qing Dynasty litigation mediation model. It is divided into four sections: the first section tells that Chinese traditional culture is the cultural basis of the Qing Dynasty litigation mediation model. The second section explains that the Qing Dynasty official assessment system promotes litigation mediation. In the Qing Dynasty, the litigant's right to Sue was limited in status and qualification, procedural and evidence, and the time of acceptance.
The third part compares the mediation inside the lawsuit with that outside the lawsuit, and explores its inherent characteristics. It is divided into four sections: the first section describes that the mediation inside the lawsuit is an activity in the lawsuit. According to concurrent jurisprudence and law, law plays an important role in litigation mediation. Section IV analyzes that litigation mediation is a way for state and county officials to try and settle civil cases, with legal enforcement.
The fourth part talks about the function and function of mediation in litigation in Qing Dynasty. The first section expounds the relationship between the dispute settlement mechanism in Qing Dynasty, the function and actual function of mediation and Adjudication in litigation, and the views and attitudes of the litigants and county magistrates toward the two mechanisms. The third section illustrates the limitation of mediation in litigation, which originates from the soil of Chinese traditional culture and is closely related to system and consciousness.
Intra-litigation mediation in Qing Dynasty played an important role in the dispute settlement mechanism in Qing Dynasty. It corrected some shortcomings of extralitigation mediation and direct judgment and was widely used in self-handling cases in Qing Dynasty. To a large extent, this mode of operation is still a customary practice. In the process of litigation, the choice of mediation or adjudication, the two solutions were open at that time, this nature determines the existence of a situation, that is, in the settlement of the same dispute is often chosen at the same time, so there are contradictions and conflicts between the two. In Qing Dynasty, a large number of cases were settled through mediation in litigation, which was the inevitable choice of the game of interests between all parties under the economic and political system.
【學位授予單位】：西南政法大學
【學位級別】：碩士
【學位授予年份】：2009
【分類號】：D929;D925
【引證文獻】
相關期刊論文 前1條
1 周琳;;城市商人團體與商業(yè)秩序——以清代重慶八省客長調處商業(yè)糾紛活動為中心[J];南京大學學報(哲學.人文科學.社會科學版);2011年02期
相關碩士學位論文 前2條
1 王能娟;論清代州縣官員解決民事糾紛的方式[D];吉林大學;2011年
2 葉琦瓊;我國訴前調解制度研究[D];華東政法大學;2012年
，本文編號：2215504
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