晚清州县“就地正法”司法程序之再考察

A Further Study on the Judicial Process of "Execution on the Spot" at County Level in Later Qing Dynasty

晚清"就地正法"之制的司法程序是不断变化的。咸丰年间,在镇压"匪乱"的过程中,常常是军营、州县官、团练讯明后即可执行正法,事后报告。自同治二年毛鸿宾郭嵩焘提出将复审之制引入就地正法后,州县审讯后增加了一个府州或道复审的环节。尤其是光绪八年经过一场关于是否取消就地正法的大讨论后,州县官审讯后的复审之制趋于细化,并要依据路途远近或将犯人解赴府州或道复审,或无需解勘犯人,而由督抚派员前往复审。但此后在实践中又趋向简化。与此同时,种种借口事情紧急、案情重大而直接由州县审判、报按察司(后为提法司)核明、督抚批饬即行正法的情况依然存在。

The judicial process of ＂execution on the spot＂ was always changing during later Qing dynasty. County magistrates, leaders of military camps or even the heads of civil corps could perform summary execution with an after-fact-reporting when suppressing the rebelling of bandits in Xianfeng period （1851-1861）. From 1863, a reexamining step from the prefecture level , Fu （府）, Zhou （州） or Dao （道）, suggested by Mao Hongbin （毛鸿宾） and Guo Songtao （郭嵩焘）, had became necessary in the process. Particularly, after the big debate on abolishing the execution on the spot system among the officials in the government at 1882, the reexamining from higher administrative levels after the trial by the county magistrates turned to be more carefully. Criminals tried in the county should be sent to the Fu, Zhou or Dao under escort for the reexamining according to the distance, or should be reheard just there by a committee member dispatched from the province governors. However, the process also turned to be simplified in practice. For evidence, there were still many cases that executions implemented directly after trying by the county magistrates, then rechecking by the Anchasi （按察司） or Tifasi （ 提司法） later, the judicial department of the province, and then approving by the province governors, with excuses for urgent circumstances or being important case