摘要
中国家事诉讼的制度化伴随着晚清修律而生成,既有内生需求,也有外力推动。家族的有限性和自治的局限性导致总有家事纷争溢出宗族,国家从未置之不理,中国社会自身内在需求需要制度予以回应;政治秩序压力和社会思潮变革推动家事诉讼制度加速建构。家事诉讼在近代政权跌宕中历经数次修订,制度的生成、演进有其内在逻辑:“家庭革命”的对象实质是宗法家族,家庭作为法律调整对象的意义得到确认;藉由内生动力对移植“蓝本”进行创新,制度生成之初就纳入了国家视角和家事传统,随后通过实践理性在制度演进过程中取舍选择;法律家对中西方家事观念和法律思维的差异保有自觉,积极明确地追寻中国家事诉讼自身独特的现代性。
The institutionalization of family litigation was generated along with the revision of laws in the late Qing Dynasty,which had both inherent demands and external forces.The limitations of the family itself and the autonomy have resulted in family strife spilling over the clan constantly,while the State has never ignored it.The endogenous demands of Chinese society require an institutionalized response.And the pressure of political order and the reform of social ideology have already accelerated the construction of the family litigation system.Family litigation has undergone several revisions in the ups and downs of modern regimes,and the generation and evolution of the system has its own internal logic:The object of the“family revolution”is substantially the patriarchal family,and the significance of the family as the object of legal adjustment was confirmed.By the innovation of transplanted“prototype”through endogenous impetus,the institution was born with a national perspective and family traditions,and then trade-offs are constantly made according to practice and reason in the process of institutional evolution.Moreover,the difference between Chinese and Western family concepts and legal thinking should be noted,so the distinctive modernity of family litigation in China itself should be actively and explicitly pursued.
出处
《民间法》
2023年第1期183-199,共17页
基金
司法部法治建设与法学理论研究部级科研项目(编号:20SFB2016)
关键词
宗法解纷
家事诉讼
制度化
演进
clan family law
family litigation
institutionalization
evolution
