清代抱告制度考论

On the Pao-kao System in the Qing Dynasty

抱告制度乃元代以后特别是明清时期诉讼制度的一个重要组成部分,该制度的渊源大致上可以追溯到《周礼》的相关记载,而其初步形态则形成于元代,经明代,至清发展成熟。在清末修律时,传统法律中的抱告与现代法律上的诉讼代理,出现了融会。现代学者一般将抱告视为传统中国的诉讼代理制度,这是一种误解。考察清代抱告制度的内容之后可以发现,这两种制度之间有着巨大差异,这种误解遮敝了抱告制度的特有内涵。

The Pao-kao system was an important litigation system in ancient China since the Yuan Dynasty. This system originated from Rituals of Zhou, began to take shape in the Yuan Dynasty, developed during the Ming Dynasty and matured in the Qing Dynasty. During the Amendment of Laws in the late Qing Dynasty, the Pao-kao in traditional law and the litigation agency in modern law were combined together. Modern scholars usually disregard the Pao-kao system as the litigation agency system in ancient China. After the Pao-kao system in the Qing Dynasty is studied, it could be found that there are great differences between these two systems. The misunderstanding may conceal the special connotations of the Pao-kao system.