The Discourse Of Litigation:People's Legal Practice In The Archives Of The Hekou

The filing and utilization of archives has always been one of the most fundamental and important tasks in the study of legal history.Compared with codes and regulations,judicial archives and trial records show the traces of law operation,and its value is self-evident.Since the “expression and practice” paradigm was proposed,the study of judicial archives has become a turning pointIt used to be that the use of courts in the Republic of China(1912-1949)was a sign of people's legal awareness or awakening of the power consciousness,which is generally right from a point of view as opposed to private remedies or more directly violence.However,from a more specific aspect,it is worth further observation whether the users of the court really have legal consciousness and what kind of legal consciousness they have.It means that this question needs a more careful answer:how did the grassroots people Sue during the Republic of China? This research is about the practical experience of the grassroots social people in the courts of the Republic of China.Author hopes to present the legal consciousness and court experience of the people who came to the modern courts to solve their personal problems in the period of the Republic of China.The article is mainly based on “xigu” civil disputes of Jiangxi Hekou archives during the later period of the Republic of China,supplemented with “the court log of Jiangxi province”,“the court log of yanshan County ” and the other information,using historical social law approach to research people's legal practice during the period of the Republic of China,focusing the written or oral words that people expressed in the process of using court,in order to show people's relatively visualized imagination on court and legal practice,finally having corresponding conclusions.In addition to the introduction,the research is divided into five chapters and conclusions.The author tries to carry out the study in the form of "judicial stage" and "judicial drama".The first chapter is mainly about the Yanshan County,Hekou courts and their judges.As a small inland province,Yanshan County had a quite localized industry and also once had a considerable prosperous economic situation.With war and chaos involved,the changes and instability brought to people who were living in the County were comprehensive and dramatic,although it had been improved by the move of garrison troops and important institutions.Generally speaking,it was reflected in the sharp decline and disorderly flow of population,the stagnation and deformity of economic development,the disorder of social relations,and the poor life of grassroots people,which to some extent provide the soil for disputes and expand it.Then author briefly sorts out the Hekou of the court and its judges.The second chapter focuses on the cohabitation cases in estuarine archives.The Hekou judicial archives contain a complete set of detailed cohabitation disputes.The author first typifies the case.Although the identities of the parties vary and the cases filed with the courts vary,the truth is that the couple is trying to maintain a close relationship or the woman is trying to get out of it.In the course of processing,the author found to reflect the characteristics of the composition of the original,the defendant had close relationships in the society at the grass-roots level of the Republic of China,on the other side of the free independent ethos under real namely in seemingly free unmarried cohabitation,women are still not free,but in the marital cohabitation men in family life also seems to be not so independent.In this case,forthe purpose of the court,the people who use the court hope that the court can play a legal role,and at the same time,they also try to make use of social functions other than the law to restart negotiations,public declaration and other social functions to obtain new discourse capital,although this mostly depends on the potential possibility that the law may be operated.In the specific use of the process,they rely on the traditional litigation discourse in the court trial to present the court with "repeatedly patient men","simple and ignorant women" and other social images that they think are beneficial to themselves.The third chapter focuses on the case of redemption dispute in Hekou archives.In the hope that readers can have a quick understanding of the redemption disputes in the Hekou area,so the author first introducing the general situation of the cases in this area.On this basis,with the help of the pleadings of both parties and the records of court inquiries,many of the redeeming disputes in the Hekou area actually had a myriad of contacts with relatives.This inextricable connection may bring convenience and credit guarantee to both sides of the transaction at the beginning of the transaction.However,when there is a dispute,the plaintiff and the defendant in the acquaintance community rush into the court with various words,quoting each other's daily economic and social positions in the way of exposing each other's background,or talking about female illiteracy or remarriage.This series of behaviors lead to the more complex use and experience of the court.The use and experience of these courts objectively show the contradictory side of "grafting" of the legal consciousness of the grassroots society in the period of the Republic of China.This remind us that the relationship between "going to court" and the so-called "right consciousness" in the legal practice of the people may not be so simple,often more complex.Chapter four focuses on the debt dispute case in Hekou archives.The judicial archives of debt disputes are the most common among the judicial archives in the Hekou which the author pays close attention to.As relatively frequent debt cases with day-to-day,the author first sorted out and classified them,and pointed out that these cases reflected the social and economic life of the local people from the side,and also exposed the economic and social fluctuations and shocks in the Hekou area during theRepublic of China.The judicial archives provide rich details of these court practices as local people bring these day-to-day debt disputes to the courts for resolution.Faced with the first hurdle of using the courts,citizens sometimes solve their court troubles by writing their own petitions;Similarly,the public will not refuse to seek some experienced Tusong to write a complaint,but their production is sometimes unstable;Of course,the public will also be willing to appoint professional groups of lawyers to intervene in their litigation process,depending on the specific situation,the degree of intervention is not the same,most of the time is the same as the Tusong on behalf of the complaint,sometimes as lawyers appear in court.Debt disputes in the Hekou region,in order to win in court competition,whether for himself or others,with the help of people will try various litigation strategy,which can use both in the debt disputes such as the legal knowledge,also can use a few in my opinion with The Times means that more sophisticated strategies,such as the accused each other so-called “Communism”;And the public will still use the traditional litigation strategy to introduce the image of "rich","long term","widow" and so on.This series of court talking constituted the real face of litigation in Hekou area during the Republic of China-the traditional and modern changes in the tug of war.The fifth chapter mainly discusses,summarizes and analyzes the discourse types of the court practice litigation in the Republic of China Hekou area.The fifth chapter mainly discusses,summarizes and analyzes the discourse types of the court practice litigation in the Republic of China Hekou area.By observing the court practices of the people in Hekou area during the Republic of China,the author points out that the litigation discourse patterns of the people in Hekou area during the Republic of China are mainly divided into two categories.One is the use of new legal knowledge,according to the legal discourse;The other is the moral discourse with obvious traces of the traditional litigation discourse,which uses the "right and restraint" discourse and exaggeration to request redress.Although they may not be directly copied,the two types of litigation discourse have their direct exemplary sources,one is a large number of new litigation guidance books,and the other is a long-standing tradition of private litigators secret books.Development in lawsuit practice from both trends,litigation of knowledge transformation has been in the Hekou of the Republic of China did happen,according to new legal knowledge as a representative litigation law discourse would gradually replace the traditional moral actions talk more is applied in the litigation practice,the key reasons behind is that foucault refers to the relationship between “power and knowledge": Judgment power is closely integrated with new legal knowledge.It can be seen from the fact that both of them were used together in the practice of public litigation at that time,on the one hand,it was because of the actual transition situation of legal system changes at that time,and it was inevitable that the two were interlaced.On the other hand,due to the natural affinity between justice and legality,the two can be connected to a certain extent in the naive concept of the people,and fewer restrictions on the form of litigation than in the past indulge such a situation or be abused.What happened in the court about the discourse of the people's lawsuit fully demonstrated the "moderate compliance" and "cautious resistance" of the people in the Hekou area in order to "minimize the disadvantage of the system" in the period of the Republic of China.The conclusion of the thesis mainly deals with the increasingly extensive and complex awareness of the people in the Hekou.In form,the people's awareness of modern litigation is extensive,and they generally accept the use of courts to solve problems,which means that the final state power is increasingly involved in people's lives.Accompanied by the growing awareness of litigation is the reliance on the state power behind.In terms of content,the public's awareness of modern litigation is complex.While recognizing the court as the field of operation of law,it is also suspected that it is not just the field of operation of law,and other attempts will try to join in.It may be more appropriate to link the use of the courts with a mix of power and power,And the court balanced that.