宋代法官审理田宅争讼的理念和方法  

The Idea and Method of the Judge Judging Real Estate Disputes in Song Dynasty

作　　者：王忠灿[1] Wang Zhongcan(Law School,Xuchang University,Xuchang,Henan 461000)

机构地区：[1]许昌学院法学院,河南许昌461000

出　　处：《河南财经政法大学学报》2023年第5期147-156,共10页Journal of Henan University of Economics and Law

基　　金：2017年国家社科基金一般项目“理学兴起与宋代司法传统的历史转型研究(项目编号:17BFXO29)”的持续性研究成果。

摘　　要：宋代田宅争讼因关乎当事人重大利益且常涉及道德伦理而成为疑难复杂案件。宋代法官接到田宅争讼后通常不因程序原因而拒绝裁判,而是尽力查明案件事实以决定是否理讼。法官查明田宅争讼案件事实的方法是通过比勘状供发现两造争讼的焦点,辨验证据真伪以查明陈情虚实,事实有疑则实地考察验证。法官在查明案件事实的基础上据理辨明是非曲直,依法定分止争。宋代法官处断田宅争讼的核心判断是依法确定田宅归属和田宅交易的效力。因田宅争讼常关乎人情,宋代法官将具体案例中的“人情”分为个体利益、情感关系和亲属关系、群体道德准则和普遍人性。法官在人情衡量时平衡争讼双方的合法利益,对具有伦理关系的当事人争讼作差异化处理,惩戒违反儒家价值观念和善良风俗的行为,尊重理解“人情之常”,对违背人性的恶行适用刑罚,以司法审判来推行教化。宋代法官审理田宅争讼的理念和方法能够对现代民事审判提供借鉴价值。In Song Dynasty,the real estate disputes always became the complex and difficult cases,because they concerned the material interests of the parties and often involved morality and ethics.When the Judges in the Song Dynasty received the lawsuit of real estate,they usually did not refuse to judge because of the procedural reasons,but tried their best to find out the facts of the case to decide whether to settle the lawsuit.The method for the judge to find out the facts of the lawsuit is to find the focus of the two parties by comparing the pleadings and evidence of both parties,determine whether the evidences were true or fake.If there was doubt about the facts,they would verify the facts in the field investigation.On the basis of ascertaining the facts of the case,the judge distinguished the right and wrong according to the morality and ethics,and judged the dispute according to the law.The core judgment of the judge in the Song Dynasty is to determine the ownership and the transaction of the land and house according to law.Because real estate litigation is often related to human feelings,Judges in the Song Dynasty divided the feelings of people in specific cases into four categories:individual-interest,emotional relationship and kinship relationship,group moral norms and universal human nature.They balanced the legitimate interests of both sides by weighing human feeling,treated the parties with ethical relations differently,punished the behavior that violates Confucian values and good customs,respected and understood the“human nature”,applied punishment to the evil that violates human nature,and carried out the education by judicial trial.The idea and method of the judge judging real estate disputes in Song Dynasty have enlightenment significance to modern civil trial.

关 键 词：宋代 田宅争讼 审判理念 裁判方法 

分 类 号：D909.92[政治法律—法学理论]