從變法修律過程中的禮法之爭看清朝末期的中西法律文化沖突
發(fā)布時間：2018-11-26 09:03
【摘要】：清末修律中的禮法之爭,具體可分為四個階段:第一階段因《刑事民事訴訟法》草案所引發(fā)的是否移植律師制度與陪審制度之爭;第二聯(lián)階段因制定《大清新刑律草案》而引發(fā)的適用西方法律原理原則還是采用禮教倫常原則之爭;第三階段因《大清新刑律草案》而引發(fā)的舊律禮教條文是否修入新刑律之爭,也即《暫行章程》是否附入新刑律之爭;第四階段是中國立法應以國家主義還是家族主義為主導思想之爭。 本文采用中義的法律文化觀,禮法之爭所引起的中西法律文化沖突主要表現(xiàn)為制度和觀念兩個方面。在制度層面表現(xiàn)為諸法合體與各個單行法律文本的沖突以及司法制度上律師制度和陪審制度的缺失和司法與行政不分與司法與行政分離的沖突等。在觀念層面的沖突表現(xiàn)為罪刑法定原則與罪刑擅斷原則的沖突,法律的泛倫理化與法律和道德的相對分離的沖突以及集團本位與個人本位的沖突等等。 禮法之爭所引起的中西法律文化沖突,是建立在特定的歷史背景下的。清末社會發(fā)生了巨大的變遷,政治上,地方與中央關系日益獨立,近代化團體與社會組織大量涌現(xiàn),而思想意識上,則受到西學東漸的影響,并且有了“中體西用”的歷史抉擇。 禮法之爭是表面的論爭,隱藏了深刻的文化沖突與差異,這些對中國法制近代化產生了巨大的影響,中國近代法律體系的形成與近代司法制度的形成與之不無關系,同時,中國人法律觀念也由崇尚祖宗之法而仿效西法,從強調義務本位到重視個人的權利等也發(fā)生了很大的轉變。傳統(tǒng)法律文化中以人為本的理念也頗具特色。中西法律文化由最初的沖突到如今的碰撞與融合是一個循序漸進的過程,對于清末禮法之爭的深刻反思有助于構建有中國特色的現(xiàn)代法律文化,積極地推動中國法制現(xiàn)代化的進程。
[Abstract]:The controversy of etiquette law in the law revision in the late Qing Dynasty can be divided into four stages: the first stage is whether to transplant the lawyer system and the jury system caused by the draft of Criminal Civil procedure Law; In the second phase, there is a dispute between the principles of applying western law or the principles of etiquette and education, which is caused by the formulation of the draft of the Great Clean Criminal Law. In the third stage, whether the old code of etiquette and education provisions is amended into the new criminal law, that is, whether the provisional articles of association are attached to the new criminal law, is caused by the "draft of the Great New Criminal Law"; The fourth stage is the argument that Chinese legislation should be dominated by nationalism or family doctrine. This article adopts the legal culture view of Chinese meaning. The conflict between Chinese and western legal culture caused by the dispute of etiquette law is mainly manifested in two aspects: system and concept. At the institutional level, it shows the conflict between the combination of various laws and individual legal texts, the absence of the lawyer system and the jury system in the judicial system, and the conflict between the judicial and administrative systems and the separation of the judicial and administrative systems. The conflicts at the level of concepts include the conflict between the principle of legality of a crime and the principle of arbitrary judgment of a crime, the conflict between the pan-ethics of law and the relative separation of law and morality, and the conflict between group standard and individual standard, and so on. The conflict between Chinese and Western legal culture caused by the dispute of etiquette and law is based on a specific historical background. In the late Qing Dynasty, great changes took place in the society. Politically, the relationship between the local authorities and the central authorities became increasingly independent. Modern organizations and social organizations emerged in large numbers, while ideological consciousness was influenced by the gradual development of Western learning to the east. And there is a historical choice of "Chinese and Western use". The controversy of etiquette and law is a superficial argument, which hides profound cultural conflicts and differences, which have a great influence on the modernization of Chinese legal system, and the formation of Chinese modern legal system and the formation of modern judicial system have nothing to do with it, at the same time, The legal concept of Chinese people has also changed greatly from advocating the law of ancestors and imitating the western law, from emphasizing the duty standard to attaching importance to the rights of the individual. The idea of people-oriented in traditional legal culture is also characteristic. The collision and fusion of Chinese and Western legal culture from the initial conflict to the present is a gradual process. The profound reflection on the controversy of etiquette and law in the late Qing Dynasty is helpful to the construction of the modern legal culture with Chinese characteristics. Actively promote the modernization of China's legal system.
【學位授予單位】：鄭州大學
【學位級別】：碩士
【學位授予年份】：2009
【分類號】：D909.2
本文編號：2358074
[Abstract]:The controversy of etiquette law in the law revision in the late Qing Dynasty can be divided into four stages: the first stage is whether to transplant the lawyer system and the jury system caused by the draft of Criminal Civil procedure Law; In the second phase, there is a dispute between the principles of applying western law or the principles of etiquette and education, which is caused by the formulation of the draft of the Great Clean Criminal Law. In the third stage, whether the old code of etiquette and education provisions is amended into the new criminal law, that is, whether the provisional articles of association are attached to the new criminal law, is caused by the "draft of the Great New Criminal Law"; The fourth stage is the argument that Chinese legislation should be dominated by nationalism or family doctrine. This article adopts the legal culture view of Chinese meaning. The conflict between Chinese and western legal culture caused by the dispute of etiquette law is mainly manifested in two aspects: system and concept. At the institutional level, it shows the conflict between the combination of various laws and individual legal texts, the absence of the lawyer system and the jury system in the judicial system, and the conflict between the judicial and administrative systems and the separation of the judicial and administrative systems. The conflicts at the level of concepts include the conflict between the principle of legality of a crime and the principle of arbitrary judgment of a crime, the conflict between the pan-ethics of law and the relative separation of law and morality, and the conflict between group standard and individual standard, and so on. The conflict between Chinese and Western legal culture caused by the dispute of etiquette and law is based on a specific historical background. In the late Qing Dynasty, great changes took place in the society. Politically, the relationship between the local authorities and the central authorities became increasingly independent. Modern organizations and social organizations emerged in large numbers, while ideological consciousness was influenced by the gradual development of Western learning to the east. And there is a historical choice of "Chinese and Western use". The controversy of etiquette and law is a superficial argument, which hides profound cultural conflicts and differences, which have a great influence on the modernization of Chinese legal system, and the formation of Chinese modern legal system and the formation of modern judicial system have nothing to do with it, at the same time, The legal concept of Chinese people has also changed greatly from advocating the law of ancestors and imitating the western law, from emphasizing the duty standard to attaching importance to the rights of the individual. The idea of people-oriented in traditional legal culture is also characteristic. The collision and fusion of Chinese and Western legal culture from the initial conflict to the present is a gradual process. The profound reflection on the controversy of etiquette and law in the late Qing Dynasty is helpful to the construction of the modern legal culture with Chinese characteristics. Actively promote the modernization of China's legal system.
【學位授予單位】：鄭州大學
【學位級別】：碩士
【學位授予年份】：2009
【分類號】：D909.2
【引證文獻】
相關碩士學位論文 前1條
1 賈娜;清末禮法之爭評析[D];鄭州大學;2013年
，本文編號：2358074
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