清代“依法裁决”问题的再研究

A New Study on the Topic of“Judging According to Law”in Qing Dynasty

关于清代甚至中国古代司法是否依法裁决,学界争议极大,相关研究多有进一步探讨的必要。清代州县官一旦有能力将案件在本层级结案,为平息争讼,他们倾向于脱离律例硬性规定,甚至可能从自由裁量滑向擅断。因此,在这个层级,依法裁决的空间有限。徒刑及其以上案件一旦进入审转覆核流程,州县官倾向于形式上依法拟判。在这一流程下,各省督抚到刑部,大部分官员经手案件时尽可能依法裁决,以免被上级驳回或问责。对命盗重案,皇帝基本尊重刑部官员的专业意见,但是,涉及政治性的案件主要听由皇帝个人旨意,存在典型擅断特征。可见,清代司法体制的要求与日常实践存在较大差异;以现代西方法制标准评判清代中国司法乃是对古人的苛求。

There is a great controversy in the academic circles about whether the judicial decisions in Qing Dynasty or even in ancient China were made according to law.The literature of Qing dynasty fully shows that as long as magistrates had the ability to settle cases at their own level,they tended to break away from statutes to settle disputes,and might even slip from discretion to arbitrary decision.Therefore,at this level,there was limited space for judging according to law.Once the cases involving penalty of imprisonment or more serious conviction entered the process of the judicial review,magistrates tended to formally judge according to law.In this process,most officials,from provincial governors to judges in the Ministry of Punishments,adjudicated according to law as much as possible when handling cases to avoid being overruled by their superiors or being asked for liability.For serious cases of theft or murder,the emperor basically respected the professional opinions of the officials of the Ministry of Punishments.However,cases involving political affairs were mainly at the discretion of the emperor,with typical arbitrary features.The above analysis helps clarify the following points:the judicial pattern of Qing dynasty was quite different from daily practice,the judicial concept of officials was not the same as that in practice,the exemplary judgments of a small number of outstanding officials deviated greatly from the normal practice of justice,and judging Chinese judicature in Qing dynasty by modern western standard is a severe demand on the ancients.