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Research On The Civil Procedure In The Southern Song Dynasty

Posted on:2010-08-08Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y BianFull Text:PDF
GTID:1486302726483424Subject:Legal history
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This article aims to study the concept of lawsuit,acceptance of law case, application and analysis of evidence,multiple basis for judegement and attainments of a judge in Southern Song Dynasty. We point out that the essence of the lawsuit system in Southern Song Dynasty lies in the perfect settlement of the law cases.The article falls into eight parts, i.e. introduction, body( consisting of five chapters ),conclusion and appendix.The introduction deals with the choice of the topic, state of art and literature review, outline of the contents, innovative points as well as the limitations.The body part consists of five chapters.The first chapter analyzes the concept of lawsuit in the minds'officials and common people during Southern Song Dynasty.Folk lawsuit was very popular during Southern Song Dynasty with relatives and the educated involved in lawsuits. Moreover, many people would stop at nothing to win the lawsuit. These do not accord with…. Though the government did not encourage court cases, facing with many unavoidable disputes in reality, the government adopted a down-to-earth attitude to ensure the settlement of the lawsuits. The so-called is due to the fear of the party involved. The so-called“no lawsuit”which the government sought for, means to improve the parties'moral calibre in the process of settling a certain lawsuit so that they would not try to win any more.The second chapter is about the acceptance of lawsuit. The government did not encourage lawsuit by adopting a“not-rash- to-accept”attitude. Therefore, more strict limitations were prescribed to raise the standard of lawsuit acceptance. Comparatively speaking, however, it is all the more tolerant to bypass judicial powers. It is done out of the consideration of timely and reasonable settlement of lawsuits. Furthermore, during Southern Song Dynasty, a judgement can be appealed till the ultimate judgement is fair and perfect to the party involved. All these mentioned above reflect the attitude of the government towards the lawsuits, i.e. countless corrections are permitted in order to reach a perfect judgement.Chapter three deals with the analysis and application of evidence.In order to make sure that the case is judged based on facts, and set the scene for fair judgement, the analysis and application of evidence were stressed during the Southern Song Dynasty. Among different evidence, written evidence was given priority. In the examination of the evidence, a judge could either adopt on-the-spot approaches, such as inspection and investigation, or adopt off-the-spot approaches, i.e. application of common sense. What's more, the judge depended more on the off-the-spot approaches. Besides, it is because the judges aimed to make judgement according to facts that they were more active when collecting and investigating the evidence, thus exempting the party from showing evidence.Chapter four is about multiple basis for judegement.When making a judgement, the judge did not rely solely on the domestic law; in order to achieve a perfect settlement, it was very popular for the judge to make a judgement in accordance with reason, which makes the judgement acceptable to the party involved. Meanwhile, the process of a particular case is a process of education in ethics and improvement of ethical attainments of the party. Besides, in some circumstances, the judgement could be outside the scope of law. For instance, when considering the effect of judgement implement, the settlement could be outside the party's lawsuit appeal to bring both sides to reconciliation; when considering the affection between the blood relations, the matter of right or wrong was not not something the judge sought. The adoption of multiple basis for judgement aims to meet the particular needs of different law cases, which is the key to the successful settlement of lawsuits.Chapter five deals with attainments of a judge.The attainments of a judge accord with the role that a judge plays in lawsuit system. Under the civil suit system of Southern Song Dynasty, a judge is not only an image representation; he is, first of all, the official appointed by the imperial government, and he must take a stand on the fair side; for the party involved in the lawsuit, his role is to serve the interests of the people.Secondly, when hearing a case, the judge has to, on the one hand, make a decision on the facts and evidence, and on the other hand, decide the case. Therefore, the judge plays a role of both a jury and a judge, which requires not only common sense but also excelent skill in law. Finally, a judge is also senior officer in Yamenand he should have a good control over the Yamen officials to prevent them from interfering with the judgement.In the conclusion part, the authors restate the main contents and point out the key points of view, i.e. the essence of the civil suit during the Southern Song Dynasty lies in the perfect settlement of lawsuits. Secondly, we also analyses the risks which may arise from the perfect settlement of lawsuits. For example, the safety of law may be threatened; the system relies more on the personal quality of the judge and the burden it may bring to the public affairs of the government. Finally, we believe that, in the western law practice,“perfect adoptation of law”is what they puesue in civil suits, while in the Southern Song Dynasty,“perfect settlement of lawsuits”is the result in civil suits.The appendix contains three forms about?Ming Gong Shu Pan Qingmingji?...
Keywords/Search Tags:Southern Song Dynasty, civil procedure, perfect settlement of the law cases
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