家族觀念與中國傳統(tǒng)法制的歷史互動(dòng)及其現(xiàn)代價(jià)值
發(fā)布時(shí)間：2019-01-04 19:06
【摘要】： 一切制度均是觀念的外化。中國人所特有的家族觀念,在漫長的歷史長河中,不僅得到儒家思想的認(rèn)可與推崇,而且還逐漸演化為倫理法與家法族規(guī),從而形成了不同于世界其他地區(qū)的中華法系。歷史上家族觀念所起的作用是偉大的,家族觀念與國家立法之間是一種良性的互動(dòng)關(guān)系,但是清末變法修律以來,家族觀念逐漸被質(zhì)疑、否定,被視為法制近現(xiàn)代化的絆腳石。 本文認(rèn)為家族觀念之所以能夠影響中國數(shù)千年,并被歷代法律所吸納,是因?yàn)榧易逵^念必定有其合理價(jià)值,盡管其中一些觀點(diǎn)不符合現(xiàn)代社會(huì)的價(jià)值追求,但也決不能簡單的全盤否定家族觀念。真正科學(xué)的做法是對家族觀念加以挖掘,找出那些仍具有現(xiàn)代價(jià)值的思想,并加以現(xiàn)代化,以服務(wù)現(xiàn)代法治。為了論述這一問題,本文共分為四章。 論文第一章,首先界定了家族與家族觀念的概念,并按照歷史順序詳細(xì)敘述了家族觀念產(chǎn)生和發(fā)展的歷史過程。從家族觀念的發(fā)展過程我們可以看出,家族觀念與古代社會(huì)的發(fā)展是相適應(yīng)的,這一觀念對于古代國家建構(gòu)“家國一體”的制度模式起著重要的作用。 在第二章里面,論文通過大量的實(shí)例論證了家族觀念對古代立法的深刻影響。論文認(rèn)為倫理法與家法族規(guī)是家族觀念的兩大外化形式,并認(rèn)真研究了倫理法與家法族規(guī)的產(chǎn)生、發(fā)展和表現(xiàn)形式,通過這些論證可以清楚的發(fā)現(xiàn),無論是對于國家法,還是對于民間法,家族觀念都是不可或缺的一個(gè)決定因素。 第三章側(cè)重于國家法律對家族觀念的影響,通過分析,論文把這種影響分為兩種截然不同的方式,而清末變法修律就是這種不同影響的分水嶺,在此前后,家族觀念面臨的是兩種不同的命運(yùn)。 最后一章是在前三章的基礎(chǔ)上肯定了家族觀念中的一些積極價(jià)值,并針對現(xiàn)代法制中的一些問題與不足對癥下藥,強(qiáng)調(diào)現(xiàn)代法律應(yīng)當(dāng)立足中國文化傳統(tǒng)的實(shí)際,加強(qiáng)對家庭倫理的規(guī)范與保護(hù),以促進(jìn)法律的健康完善和社會(huì)的穩(wěn)定和諧。
[Abstract]:All systems are the externalization of ideas. In the long history, the unique family concept of Chinese people has not only been recognized and respected by Confucianism, but also gradually evolved into ethical law and family rules, thus forming the Chinese legal system which is different from other parts of the world. In history, the role of the family concept is great, and the relationship between the family concept and the national legislation is a kind of benign interaction, but since the reform of the law in the late Qing Dynasty, the family concept has gradually been questioned, negated, and regarded as a stumbling block to the modernization of the legal system. This paper argues that the reason that family concepts can influence China for thousands of years and are absorbed by the laws of successive dynasties is that they must have reasonable value, although some of them do not conform to the value pursuit of modern society. But you can't simply negate the idea of a family altogether. The real scientific approach is to excavate the family concept, find out those thoughts that still have modern value, and modernize them to serve the modern rule of law. In order to discuss this problem, this paper is divided into four chapters. In the first chapter, we define the concept of family and the concept of family, and describe in detail the historical process of the emergence and development of the concept of family according to the historical order. From the development process of the family concept, we can see that the family concept adapts to the development of the ancient society, which plays an important role in the construction of the system model of "the family and the country as a whole" in the ancient country. In the second chapter, the paper demonstrates the profound influence of family concept on ancient legislation through a large number of examples. The paper thinks that the ethical law and the family rule are the two externalized forms of the family concept, and studies the emergence, development and expression form of the ethics law and the family law regulation. Through these argumentation, it can be found clearly, no matter for the national law, For folk law, the concept of family is an indispensable determinant. The third chapter focuses on the influence of national law on the concept of family. Through the analysis, the paper divides this influence into two distinct ways, and the law of reform in the late Qing Dynasty is the watershed of this kind of different influence. The concept of family faces two different fates. The last chapter affirms some positive values in the family concept on the basis of the first three chapters, and points out that the modern law should be based on the reality of Chinese cultural tradition, aiming at some problems and shortcomings in the modern legal system. Strengthen the regulation and protection of family ethics in order to promote the healthy improvement of law and social stability and harmony.
【學(xué)位授予單位】：復(fù)旦大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2010
【分類號】：D929
本文編號：2400676
[Abstract]:All systems are the externalization of ideas. In the long history, the unique family concept of Chinese people has not only been recognized and respected by Confucianism, but also gradually evolved into ethical law and family rules, thus forming the Chinese legal system which is different from other parts of the world. In history, the role of the family concept is great, and the relationship between the family concept and the national legislation is a kind of benign interaction, but since the reform of the law in the late Qing Dynasty, the family concept has gradually been questioned, negated, and regarded as a stumbling block to the modernization of the legal system. This paper argues that the reason that family concepts can influence China for thousands of years and are absorbed by the laws of successive dynasties is that they must have reasonable value, although some of them do not conform to the value pursuit of modern society. But you can't simply negate the idea of a family altogether. The real scientific approach is to excavate the family concept, find out those thoughts that still have modern value, and modernize them to serve the modern rule of law. In order to discuss this problem, this paper is divided into four chapters. In the first chapter, we define the concept of family and the concept of family, and describe in detail the historical process of the emergence and development of the concept of family according to the historical order. From the development process of the family concept, we can see that the family concept adapts to the development of the ancient society, which plays an important role in the construction of the system model of "the family and the country as a whole" in the ancient country. In the second chapter, the paper demonstrates the profound influence of family concept on ancient legislation through a large number of examples. The paper thinks that the ethical law and the family rule are the two externalized forms of the family concept, and studies the emergence, development and expression form of the ethics law and the family law regulation. Through these argumentation, it can be found clearly, no matter for the national law, For folk law, the concept of family is an indispensable determinant. The third chapter focuses on the influence of national law on the concept of family. Through the analysis, the paper divides this influence into two distinct ways, and the law of reform in the late Qing Dynasty is the watershed of this kind of different influence. The concept of family faces two different fates. The last chapter affirms some positive values in the family concept on the basis of the first three chapters, and points out that the modern law should be based on the reality of Chinese cultural tradition, aiming at some problems and shortcomings in the modern legal system. Strengthen the regulation and protection of family ethics in order to promote the healthy improvement of law and social stability and harmony.
【學(xué)位授予單位】：復(fù)旦大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2010
【分類號】：D929
【參考文獻(xiàn)】
相關(guān)期刊論文 前1條
1 劉廣安;;論明清的家法族規(guī)[J];中國法學(xué);1988年01期
，本文編號：2400676
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