词讼与案件:清代的诉讼分类及其实践

Cisong and Anjian: The Litigation Types and Its Practice in Qing Dynasty

清代立法与司法实践主要受皇帝和官方自我利益因素的驱动,将诉讼事件大致分为词讼(或细事)与案件(或重情)两大类。前者常指户婚、田土等州县官自理型诉讼,后者多为徒刑以上案件,包括人命、强盗等严重的犯罪。这种分类标准既与案情本身性质与构成要素有关,同时也包括事后判决结果及量刑轻重。这两类诉讼的告诉时间规定及裁决依据各有不同:清代法制默许官员对词讼可忽视现有法条,不依法审理,当事人的告状时间有一定限制;对于案件,则要求官员依法审理,虽然诸如刑部官员可能运用比附等法律适用方法,但依然是以制定法为依据而展开,这对案件判决有决定性影响。词讼与案件的分类以及官府贬低词讼的态度,显示了官僚集团的自利倾向。这种司法环境促使词讼当事人采取一些无可奈何的制度性回应方式。

Motivated by emperors and officials' self interests,the Qing law and its normal practice generally classify litigations as following two types,cisong(minor matters) and anjian(serious crimes).Cisong generally related with the civil litigation of household,marriage or land,and anjian included high crimes such as slaughter,rape or robbery,of which the offenders would be punished at least more severe than blows of the heavy bamboo.The principles to classify litigations are not only based on the certain litigation nature and its structure,but are also based on the judgement.Two types of litigation differ in time for allowing the litigants to suit and the rules for making judgements.Qing law allows officials to make judgement freely,and limit the time to suit as officials adjudicate cisong.As to anjian,officials are required to abide by Qing law.Although the officials from the Board of Punishment would use some skills such as analogy,their jugdgemnts were still mainly based on positive law.The litigation classification and officials' aversion to cisong show the self-interest trend.Such judicial backgrounds press the involved parties of cisong to respond with some routine strategy.The above litigation classification witnessed long history.However,scholars have paid little attention to the classification before.And as a result,some improper arguments appeared.