《大清会典》与清代“典例”法律体系

Hui Dian and "Dian-li" Legal System of Qing Dynasty

清代史料中保存了大量《大清会典》颁行、查询、解释、修改、增补、恢复休眠条款、对违反行为进行惩处等方面的史料,足证《大清会典》是清代实际行用的根本法,在"典例"法律体系中处于重心和基准的地位,绝非具文。认为《大清会典》是史书、政书、行政法典、行政法与根本法合一、综合性法典汇编的观点,低估了《大清会典》在清代法律体系中的地位。清代在明代的基础上,进一步以"典例"法律体系取代"律令"法律体系,在这一体系中,《会典》是纲,律例是目,前者高于后者,后者从属于前者。康熙、雍正时期,《大清律》成为《会典》的组成部分。嘉庆、光绪时期,《大清律例》成为《会典事例》的组成部分,律下降为《会典》的下位法。"律例"体系只是"典例"体系中的刑法部分,不足以全面概括清代法律体系的特征。

The Qing dynasty＇s legal system takes after the Ming＇s as it is featured with ＂Lv Ling＂ replacement of ＂Dian--li＂. In such a system, the Author argues, that Hui Dian is the fundamental law, taking a pivotal status as yard of measurement. Among historical archives, it has been discovered that plenty of them are concerned with Hui Dan＇s promulgation, queries, explanation, revision, addition, reversion of dormant clauses, together with records involving punitive actions against deeds of its viola- tion. It proves that Hui Dian is not a compilation of lawful regulations, but a fundamental law of Qing Dynasty in practice. The notions that categorize Hui Dian as a record book of history, a guideline of poll tics, a code of administration, a combination of administrative law plus fundamental law, or a compre- hensive compilation of laws all underestimate significance of Hui Dian in its legal system. Actually, in such a system, Hui Dian plays the role of ＂head rope＂ while the decrees are the ＂meshes＂ （as when the head rope of a fishing net is pulled up, all its meshes open）. This means the latter is subordinate to the former, and is in no way to oppose the former. In Kangxi and Yongzheng dynasties, Da nexed to Hu Dian and in Jiaqing and Guangxu dynasties, Da Qing Lv Li was also en Dian Shi Li as a part of Hu Dian. These facts show that in Qing Dynasty, the status of enced a dramatic decline. As the Paper reveals, --Li＇, hence it cannot reflect characteristics of ＂Lv--Li＂ only constitutes the criminal Qing＇s legal system in full scale. Qing Lv was an- listed in the Hui ＂Lv＂ had experi- law part in ＂Dian