传统中国民事纠纷处理背后的德治理念及其超越

我国传统民事纠纷的处理，采与西方两当事人公平对抗不同的“三当事人主义”，纠纷解决的形态呈千变万化的脸庞。而背后支撑它的理念则是，审判不仅仅是为解决纠纷而存在，更是推行人伦教化的根据地，审判官更俨然以“父母官”自居，打着为民做主的旗号，包办了纠纷的解决。这里见不到当事人为私权自治而奋斗的主体性，一切系于法官一念之间。在现代社会价值多元的情况下，个体主体性越来越得以彰显，“三当事人主义”下的德治理念已如昨日黄花，需要改弦更张。因此，从德治迈向法治，倡导司法独立方符现代法治理念。

The Moral Concept and Transcedence Behind the Traditional Dispute Settlement

Chinese traditional civil disputes takes ＂three parties＂ doctrine, which is different from fair fight of two parties in western countries. Dispute settlement has taken inexhaustible variety of forms. The philosophy behind is, the trial is not only to solve disputes, but also implement human civilization. The judges take themselves as ＂official＂,under the banner of the people, arranging all the dispute settlements. There is no subjectivity of the struggle for autonomy of private right, and everything is decided by judges. In the modern society with pluralistic value, individual subjectivity is becoming more obviously, the moral concept behind ＂three parties＂ doctrines is out of date, needs to be changed. Therefore, from the rule of moral towards the rule of law, advocating judicial independence is eligible to the character of modern rule of law.