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On The Justification Of The Civil Verdict In The Southern Song Dynasty

Posted on:2019-03-13Degree:MasterType:Thesis
Country:ChinaCandidate:X X WangFull Text:PDF
GTID:2416330548952071Subject:Legal history
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The Collected Cases of the Judgement by Famous Good Officials,the earliest and the most systemically complete collection of judicial practice in China,has been highly valued by overseas and domestic scholars of legal history.Since the in-depth study after the 1940 s by the Japanese scholars,scholars from the Mainland,Taiwan and Hong Kong have been paying close attention to the collection.This thesis explores the major concerning factors of those famous good officials in civil verdict from the perspective of the process of justification of the legitimacy of the civil verdict in The Collection Cases of the Judgement by Famous Good Officials.The thesis serves as a response to the tens of years' arguments in the academic circle,which had heated arguments over the way of civil verdict in ancient China.One side thought the ancient civil verdict were typical of individuality and arbitrariness,violating the regulations with unpredictability.“Substantial” consideration had weighed down the “format” in this way of verdict,a substantive non-rational type.The other side thought that the ancient civil verdicts were guided by the unique verdict rules.The judges practiced in accordance with law and were not arbitrary in practice,so the judgements were typical of objectivity and determinacy,instead of being Khadi justice.This thesis has discovered on the basis of statistics and a large number analyses of civil verdict document of the Southern Song Dynasty that the verdicts were not totally “non-rational”,unpredictable,nor did the judges practice strictly according to the law.The way of justification of verdict legitimacy varied during the judges' treatment over diversified cases.In terms of economic disputes,the judge directly made judgement upon the evidence of the case,so the like of verdict was of high consistency;judgements diversified over cases of marriage and contending cases in which the judge needed to evaluate the specific situations.First,the thesis gives a brief introduction to the civil cases to clarify the domain of the cases herein discussed.Then the civil cases are classified and the base of classification is illustrated.The classification has avoided the principles of the modern civil law,and it is based on the subject matter of litigation and the litigant subject,to discuss the legitimacy of the process of justification of civil cases in a more detailed manner.Then an illustration of whether the citation of legal provisions in the verdict had impacts on the judgement or not is given,to dispel the prejudice that,“The citation of legal provisions is legal judgement,otherwise it is random judgement.”The second part discusses lawsuits of farmland and house.This sort of cases takes the largest proportion,but the judgements are highly consistent in the judgement rules.These lawsuits could be subdivided into disputes over the transaction of farmland and house,cases of kinship and neighborhood dispute,cases of property rights,and cases of outlaw and punishment.The rules of four kinds of judgements have particularities and the processes of legitimacy of justification have their own characteristics.The third part discusses dispute cases of adopting and inheritor.This type of cases could be subdivided into scramble for inheritor,clan returning,inheritor abolition.Different from the dispute over farmland and house,cases of adopting and inheritor in many situations were not judged by the legal provisions.Despite that,the judges had rendered verdict with specific principle.In particular situations,the judge would compromise to balance the clashes of values and benefits to cease down all parties' appeals.The fourth part discusses dispute cases of marriage.This type takes the minimum share,but the factors of the legitimacy of the justification are far more complicated than the previous two types.Nevertheless,the thesis attaches high importance to lawsuits of remarriage of divorced wives whose ex-husband had sued them.The judgement of this type of lawsuits is highly homogeneous.In conclusion,the author of the thesis holds the view that the principles of judgements of dispute case of farmland and house,of adopting and inheritor and of marriage vary from each other,and the traditional Chinese judicial verdict should not be mechanically compared with the Khadi justice or simply be generalized as verdict by legal provisions.Different cases have their own principles of verdict and the processes of legitimacy of justification are similar;lawsuits of different types vary hugely in the process of justification.However,there is no definite say as quite a few cases are in need of particular treatment.
Keywords/Search Tags:the Southern Song Dynasty, The Collection Cases of the Judgement by Famous Good Officials, civil verdict, legitimacy
PDF Full Text Request
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