刑部郎中成“讼棍”——嘉、道严惩“讼师”的扩张解释

The Director of the Bureau of Ministry of Punishment Become A Legal Pettifogger --The Extensive Interpretation on Severe Punishment of Litigation Masters during the Period of Jiaqing and Daoguang Reigns

在儒家法中,常把刑罚时轻时重作为调节社会问题或矛盾的一种手段或工具,因而某一时期特定的刑罚往往标示法律的主要指向或目标。嘉道时期,鉴于京控案的急剧增加,在官方强化相关立法的同时,在司法上出现了讼师的＂讼棍＂化,特别是要求审理重案时,根究有无讼棍＂教唆＂,如有＂一切重罪,悉以讼师当之＂的做法,既契合了地方官借此打压＂上控者＂以减轻其政治压力的诉求,也造成了＂运动式＂执法,掩盖了目趋严重的官民冲突等社会问题,对讼棍的法律适用呈现扩张解释。

The case of Lu Yingxiang＇ s litigation instigation which occurred in the Emperor Daoguang 29 years, was a typical case to further suppress the instigator since the Qing court enacted a regulation that strictly controlled litigation masters. This case was deemed to be an odd case. In this case,Lu Yingxiang had quite special statues of director of the bureau of ministry of punishment. Initially, he was drawn into the case of impeachment of Wu Yujun who was elevated to the county magistrate of Dongguan. Since Wu Yujun had profound background of officialdom, the imperial envoy sentenced Lu Yingxiang in absentia according to all the evidence without Lu Yingxiang＇ s confrontation. Lus were forced to start the first capital appeals, therefore the Qing court sent the imperial envoy for the second time to reverse the verdict of the case, whereas the third imperial envoy, who took the case in the form of ＂putting on record but not starting the investigation＂, sentenced Lu Yingxiang to banish to the border area for cumulative and chronic litigation instigation in the circumstance that Lu Yingxiang refuse to concede. This case left a lot of doubtful points, which showed that legal opinion may be quite different from the fact. The conflict between regulation and judgment caused the highest judicial defense to deviate from the track of justice, which thereby aggravated the social crisis during the period of Jiaqing and Daoguang reigns.