司法或政务:清代州县诉讼中的审断问题  

Justice or Administration: County—level Adjudication in Qing Dynasty

作　　者：里赞[1] 

机构地区：[1]四川大学法学院

出　　处：《法学研究》2009年第5期195-207,共13页Chinese Journal of Law

摘　　要：从现代西方三权分立的视角看,清代州县对诉讼的审断是司法行为。然而在中国,当时州县是统管一方的牧民之官,审断诉讼不过是他治理地方职责的一个部分,故其审断行为应看作政务而非司法。县衙不同于现代意义的法院,州县也不同于现代意义的法官。州县的铨选本不侧重法律知识,所针对的社会诉求也更多是伸冤而非维权,故其审断时主要考虑的并不是完成整个审断程序及严格适用律例,而是自主灵活地掌握程序与规则,综合运用情、理、律,以最便捷有效,也最能为当事人接受的方式了结纠纷,从而维护地方社会的安定与和谐。The purpose of this paper is to argue that the adjudication of Qing magistrates is administrative rather than judicial in nature on the basis of well--preserved archives of south county of Sichuan Province in the Qing Dynasty, to reveal the possible theoretical misunderstandings resulted from west--centralist tendency prevailing in the research on lawsuits in Qing counties and e- ven on Chinese traditional legal history, and to give new interpretations on related theoretical controversies by seeking to dismiss preconceived theoretical assumptions and ponder on historical facts in real historical situations.To take the county--level adjudication in Qing Dynasty as justice and isolate it from county governance affairs stems from the preconceived assumption of separation of powers and is considerably inconsistent with the real situation in the Qing Dynasty. In traditional Chinese societies including Qing Dynasty, there had neither the structure of state power in the modern western sense nor the modern legal system. A county magistrate appears to be a ＂shepherd＂ of the people in the county, and adjudication is merely an aspect of his powers or duties. A County Yamen is not equivalent to the court in the modern sense, while a county magistrate is not equivalent to a judge either. These are not only formal differences in titles or terminologies, but could be substantial in the personal background, knowledge background and value preference. And the non--law--ruled nature of traditional societies means that what is needed by the societies is to complain the wrongs rather than to defense the rights. Therefore, a county magistrate, for the purpose of settling disputes, would regard the disputes settlement between the involved parties as work of the governance of the county. In this process, a county magistrate would make a flexible use of procedures and rules instead of sticking to them strictly, and the settlements of the disputes are the comprehensive application of commonsense, conscience and legal rules.Sichuan＇s

关 键 词：州县审断 政务与司法 清代法制史 

分 类 号：D929[政治法律—法学]