清代涉疑案件处理考略

An Examination of the Handling of Doubtful Cases in the Qing Dynasty

涉疑案件的处理是中国法律史上的一个经典命题。唐宋时期,法典对涉疑案件有专章规定,确立了"疑罪从赎"的基本处理方式。但至明清时期,律典中不再规定涉疑案件处理的一般原则。目前学界大体认可:清代对待刑名案件和州县自理词讼的态度不同。与此相应,在涉疑案件的处理上,同样可以区分为刑名案件和州县自理词讼两种情形。对于刑案涉疑,《大清律例》在制度设计上似有刻意回避重大疑案之嫌,一般规定俱入秋审办理,奏请皇帝定夺。原本依律可以奏部咨结的徒流案件,因为案情涉疑未定,也改为奏请定夺。而州县自理词讼涉疑,因裁决权在州县,故现实中存在不予受理、教化当事人息讼、分派民间组织处理和依据情理处断等多样化的处理方式。

The handling of doubtful cases is a classical topic in the history of Chinese law. In the Tang and Song Dynasties, the codes had special provisions on doubtful cases which established such a basic principle as ＂the suspects convicted in doubtful cases being absolved from punishment＂ . When it came to the Ming and Qing Dynasties, the general principle of dealing with doubtful cases no longer existed in the codes. Currently, scholars in this field basically reach an agreement that the government in the Qing dynasty had different attitudes to the criminal cases handled by the central government and the cases handled by the local authorities. Accordingly, there were two deferent methods of handling these two types of cases when they were in doubt. For the doubtful criminal cases handled by the central government, the Qing Code seemed to deliberately avoid this problem and stipulated that this type of serious doubtful cases should be reserved for the autumn trial procedure and finally decided by the emperor. And the cases that used to be decided by the Ministry of Punishments were also referred to the emperor because of the doubtful details. As the local authorities had the power to make final decision concerning the cases they handled by themselves, the ways of dealing with this type of cases were diversified, including rejecting the case, making peace between the parties, sending the case to non-governmental organs and judging it according to the situation.