明清诉讼中的“依法审判”

明清诉讼并不以律例为准据，“庶不与律例十分相背”一语，道出了律例仅仅作为一种宽泛的制约因素而存在。“律例规避”案和“非必然因果关系”案表明，对争讼各方利益的均衡考量才是诉讼的根本准据。正是情理、律例与利益平衡之间错综复杂的关系，才造成了“依法审判”的假象。在“依法审判”之争的背后，凸显的是我们对西方法律和诉讼模式的执着。实际上，确定性的保障并非只能靠“依法审判”一途，明清诉讼正是在对利益平衡的追求中实现自身诉讼和法律的确定性。

"Trial in Accordance with the Law" in Lawsuits in the Ming and Qing Dynasties

In the Ming and Qing Dynasties, lawsuits did not strictly follow legal regulations. The remark, ＂such would not quite violate legal regulations＂, betrays the fact that legal regulations only acted as loose constraints. The cases which ＂bypass legal regulations＂ or which ＂show no necessary causation＂ are illustrative of the fact that striking balance between the benefits of the contending parties involved is the fundamental guidance for lawsuits. The complicated relationship between commonsense, legal regulation, and benefit balancing belies the appearance of ＂trial in accordance with the law＂. Behind the controversy over ＂trial in accordance with the law＂ lies our persistent aspiration for the western model of law and litigation. As a matter of fact, the guarantee of certainty should not be provided exclusively by ＂trial in accordance with the law＂. The lawsuits in the Ming and Qing Dynasties realize their procedural and legal certainties through the pursuit of benefit balance.