Study On Chinese Judicial Tradition And Its Social Foundation From The Perspective Of “Hai Rui Theorem”

Hypocrite thought existing in the traditional Chinese society subtly penetrate into the field of justice, gradually formed a wishy-washy referee principle called "dividing the interest of litigation into four or six points ".this principle played a role in ancient Chinese judicial practice to handle the civil disputes,but did not achieve the utility of eliminating disputes in the field of judicial practice,on the contrary induced phenomena of vexatious suits.Local officials of the Ming Dynasty Hai Rui who accepted the education of feudal traditional knowledge was disgusted with this phenomenon,and advocated the idea of unify thought and action,so he always insist on maintaining the consolidation feudal ethics and the law of the state, and gradually formed a set of effective judgment principle in the trial process of dealing with specific cases, professor Su Li called it as "Hai Rui theorem".Hai Rui emphasized that legal staffs should persist in applying the law of state as the basis of court cases all the time,only when conditions are available,but still unable to find out the truth of hard cases by the law of state, the legal staffs could introduce reasonable factors,called the patriarchal ethics,into those hard cases.According to the nature of the litigation rights to achieve judicial value, maximize the effectiveness of economic assets by distributing economic assets to the poor people;on the contrary,settle the disputes by deploying cultural assets properly to the rich man in order to save their appearances,generally speaking,this measures could maintain the stability of social order.From a contemporary perspective,Hai Rui theorem had its Value of legal economics,we should appreciate its judicial value and social value, meanwhile Hai Rui theorem also reduced the frequency of occurrence of the phenomenon of vexatious suits.in addition to the influence of the ideology,the reason why Hai Rui theorem was appled in handling disputes which occurred in the feudal society mainly was enslaved to social organization structure,economic base and thought,Hui Rui theorem would determinate the attribution of the litigation rights in specific disputes, solve the difficulties in the judicial trial,ensure the stability of the social order.The following contents are studied in detail:The first chapter will introduce background of "Hai Rui theorem",with Professor Su Li first interpreted "Hai Rui theorem" as the breakthrough point, put forward the judicial experience summarized by Hai Rui to solve practical problems and maintain the patriarchal order;from the viewpoint of legal economics,set forth the value of legal economics at traditional Chinese society,and discuss Hai Rui theorem's legal position relationship,as well as its judicial value and social value.The second chapter will diachronically study adjudicate suits in line with the spirit of “Spring and Autumn” and other Confucianism classics,introducing Confucianism into law,Hai Rui's judicial experience and the measure of handling divorce cases by introducing extra judicial rationality factors in judiciary period of Ma Xiwu.Research Hai Rui theorem's effect at the traditional judge background from the historical experience.The third chapter,on the social basis of the formation of Chinese judicial tradition,in addition to the influence of the ideology,Hai Rui theorem mainly was enslaved to social organization structure,economic base and cultural tradition.Because the basic factors of social development did not fundamentally transform,and always rooted in the unique social soil of the Chinese nation,so even though the change of dynasties, judicial tradition would all the time maintain its original historical value, social value and justice value. The foundation of forming traditional justice is farming civilization and the rural society,the system basis of the patriarchal society and the Confucianism thought.The fourth chapter will discuss the condition, “Hai Rui theorem” which played the important roles in ancient judgment applied in the contemporary Chinese judicial practice.With the collapse of social hierarchy system,the transformation of economic structures and the change of cultural consciousness, improvement of national laws and regulations, "Hai Rui theorem" shows a declining trend in contemporary Chinese judicial practice, but still play its invisible effect in some aspects and fields.