略论中国古代法律的基本性质——兼谈中国古代无民法

关于中国古代法律,"诸法合体,民刑不分"的习惯说法并不妥当,它意味着诸法都有,没有分开而已;民法之说则似是而非,模糊了民法与刑法的区别,也模糊了古今与中西法律的基本区别.在中国古代特定的社会历史条件下,法律作为维护家天下统治秩序的工具,核心是一个"刑"字,是泛化的刑罚.它无所谓民事与刑事的区分,只有事之大小、刑之轻重,故与民法无关,也不等同于刑法,勉强可视为一种片面的刑法.实际上,中国古代社会无从产生民法,民间社会关系与纠纷概由律及礼、俗调节.

A Brief Comment on the Nature of the Laws in Ancient China

Neither the popular idea that "all laws were incorporated into one and there was no difference between civil and criminal laws" nor the so called "civil law" is pertinent to the ancient Chinese laws.For,the former means there were all kinds of laws in ancient China which were not disjoint,while the latter is just something of speciosity which blurs the differences between the civil and criminal laws,between the laws of ancient and modern times,and between the laws of China and the West.In the special historical conditions of ancient China,laws were merely tools for the rulers,the core of which is the word "penalty".That is,all these laws are criminal laws in a broad sense.There existed only big or small crimes,heavy or light penalties which were relevant neither to civil law nor to criminal law where nobody tried to differentiate civil or criminal.This kind of laws could be called some unilateralist criminal law at most.In fact,there was no social basis for a civil law in ancient China,where the relationship or disputes between people were adjusted by the customary rituals and etiquettes.