明清乡里调解制度研究

【作者】 陆娓；

【导师】 董长春；

【作者基本信息】 南京师范大学 ， 法律史， 2007， 硕士

【摘要】 中国传统社会的民间调解分为乡里调解、宗族调解和亲邻调解，其中的乡里调解是一种具有“半官方性质”的调解制度。乡里调解萌芽于原始部落协商解决纠纷的方式，至明初通过《教民榜文》的颁行而被固定成为一种法定的调解制度。虽后榜文被废除，但作为一种伴有官方权威的特殊调解方式，其已被民众深深所认同，并一直被延用，对当今的基层调解方式亦产生了不可小觑的影响。明代基层的里甲制度是明代乡里调解制度的载体，明初《教民榜文》第一条规定：“民间户婚、田土、斗殴相争一切小事，不许辄便告官，务要经由本管里甲老人理断，若不经由者不问虚实，先将告人杖断六十，仍发回里甲老人理断。”将里老人和里甲法定为了民事纠纷及一些轻微刑事纠纷乡里调解主体，且此类纠纷必须由里甲、老人理剖，不可越诉。明中后期，老人逐渐被废除，里甲制亦开始松弛，至清初最终被保甲制所取代。清代乡里调解的调解人为保甲长、乡约和公局士绅。清代乡里调解较之明代更为灵活，在某些纠纷申请方式上已无须递交申请书，举证也更为充分。明清乡里调解制度因其调解人的权威性和亲近性以及解决纠纷的快速性和便捷性而深受民众的肯定。乡里调解与宗族调解、亲邻调解相互配合、相互转化，为纠纷解决机制提供了一个多元化的格局。当代解纷机制的主要构成为诉讼与法院调解，而日益增多的民间纠纷使得有限的司法资源显得疲惫不堪，因此可以明清乡里调解制度作为参考构形建立一个以《民间调解法》为中心的，分区域调解、多部门联合调解的民间调解体系。更多还原

【Abstract】 The folk mediations in Chinese antique society were composed of country mediation, phyla mediation and neighborhood mediation. Country mediation is a kind of "Semi-official" mediation system. It originates the way to solve dispute which solve by consultation in the tribe. And to Ming Dynasty, follow the passing of "Jiao Ming Bang Wen",the country mediation was admitted as a legal mediation system. Although Bang Wen was abolished, but as a special mediation accompanying the official right, it was deeply admitted by people and was used all the way, it also influents the folk mediation greatly now.Lijia system is the carrier of country mediation in Ming Dynasty. The first item of "Jiao Ming Bang Wen" said:"every smart matter something like farmland soil, household and marriage which would not indict casually, must be taken up by the leader and the elder in Li. If the plaintiff who indicts casually will be bitten 60 by wooden staff, and still put the case back to let leader and elder take up. "which made the leader and elder become the mediation maker of civil case dispute and some slight crime disputes. And these dispute only could be taken up by leader and elder in Li, could not indict to county government. From the middle period of Ming, the system of elder in Li was abolished gradually. The system of leader in Li loosens day by day, and was instead of the system of leader in Bao. The mediation maker in country mediation of Qing Dynasty is the leader in Bao and Jia, the people who charge of culture in country and the General in bureau. The country mediation in Qing was more flexible than the one in Ming. The application form of mediation was not needed in some dispute mediation, and proof offer was more ample.The country mediation in Ming and Qing Dynasty was affirmed by people, because its mediation maker was authoritative and closes to, and it could solve the dispute swiftly and conveniently. The country mediation, phyla mediation and neighborhood mediation convert and help each other which offered a diversified structure. The system of solving dispute mainly composed of litigation and court mediation .But the folk disputes which increased day by day made the limited judicatory source tired greatly .So we can make the country mediation in Ming and Qing as a reference to build a great folk mediation system which takes" folk mediation law" as center, takes ratings mediation and consociation mediation as content.更多还原