明清家族司法探析

Family Judicial Adjudication in the Ming and Qing Dynasties

明清时期国家注意对乡里社会的控制,鼓励各地家族在自己的谱牒中制定约束族人的规范,并赋予家族尊长对这些规范进行裁断和强制执行的权力,家族司法由此产生并发展。此时期的家族法规对家族内部的司法组织、辅助人员、管辖、告诉、审断、执行等主要制度和程序都有所规范,地方官府也在不同程度上承认其司法效力。家族司法有着鲜明的特点,对古代国家州县一级的司法活动产生了重要的影响。

During the Ming and Qing Dynasties, the state authorities paid special attention to the control over societies in remote country areas. They encouraged the clans to work out regulations in their genealogies to restrict their clan members, and entrusted the clan elders the power to ver- dict and enforce such regulations. Henceforth, family judicial adjudication came into being and continued to develop. The family laws and regulations in the Ming and Qing Dynasties showed strong continuity of those famous family laws in the Song and Yuan Dynasties, from which many basic institutions and principles in the family judicial adjudication were originated. The family laws and regulations of the Qing Dynasty carried forward the basic spirit of those in the Ming Dy- nasty, and they were made more specified and their strength of punishment was further intensified. The family laws and regulations during that period covered all the specifications within the clans about the judicial organization, auxiliary staff members, jurisdiction, lawsuit, hearing and adjudging the case, and the execution. The family laws and regulations at that time were charac- terized by the fact that the administrative organization within a clan was simultaneously the organ- ization of judicature and the clan elder was the greatest authoritative in awarding and punishing the members of the clan according to all the regulations of the family stipulations and procedure. In family judicial adjudication, the clan elder played a leading role with various powers endowed to him. Local officials acknowledged his judicial effectiveness to various degrees. With striking char- acteristics, family judicial adjudication had important impact on the judiciary activities at the level of state or county in the ancient time.