清代共同犯罪首从认定中的疑罪处理——以监候待质为中心

Treatment of the Suspected Crimes in the Identification of Principal and Subordinate Prisoners of Joint Offence in Qing Dynasty——Focusing on Detainment for Awaiting Execution

共同犯罪首从认定的疑罪处理是值得关注的一个话题。清代监候待质制度主要解决的是共同犯罪事发在逃后现获人犯的定罪量刑问题。该制度初创之后,受主流理念和治术权衡的转变的影响,从乾隆至嘉道经历了自删除到重建的立法调整。其过程包括"拟罪监禁"、分罪定限、整合条例与扩延主体四个阶段。调整后的监候待质制度为共同犯罪事发在逃后处理现获人犯的疑罪问题提供了系统规范的法律依据,但也存在难以根除的制度痼疾,呈现出顾此失彼的局面。因此,应当反向借鉴监候待质制度,消除传统"疑罪从有"的影响,彻底贯彻"疑罪从无"原则。

The handling of suspected crimes in identification of principal and accessory of joint offence is a concern in the legal history field.The system of detainment for awaiting confrontation in Qing Dynasty mainly solved the conviction and sentencing of arrested accessories in the joint offence with principal still in flight.After the establishment of the system,influenced by the changes in mainstream ideas and the ruling trade-offs,from the Qianlong period to the Jiaqing and Daoguang period,it has experienced the legislative adjustments from deletion to reconstruction,The system of detainment for awaiting confrontation after adjustment provided a systematic and standardized legal basis for handling suspected crimes of arrested accessories when the principal was still on the loose,but there was still systematic illness that was hard to eradicate.Therefore it is necessary to reversely refer the system,eliminate the influence of the traditional principle of"assuming guilty for doubtful cases"and thoroughly implement the principle of"no punishment for on doubtful cases".