清代司法实践对“戏杀”“斗杀”罪名的差异性认同及适用——以《张船山判牍》中“曹家庆”案为例进行分析

On the Different Identification and Application of the Charges of “Killing Caused by Joking” and “Killing Caused by Fighting” in the Judicial Practice of the Qing Dynasty——A Case Study of “Cao Jiaqing” in Zhang Chuanshan Judgments

清代州县官员对辖下所承审案件性质的主观认定往往影响着后续具体律例条文的适用以及案中人责任和权益的承担与保障。“戏杀”与“斗杀”二罪名虽然在律例规定中的文字表述层面有着明显的差异,但在实际应用过程中却受限于个案情节过程的特殊性往往很难做到准确的归类划分。这种对犯罪性质认定的“交叠”情况直接导致了最终形成的审定结论在刑种选择和刑罚轻重问题上无法满足社会上“情法两平”的民众心理需求。通过清代张问陶对“曹家庆”一案审理过程的文字记叙可以发现承审者对案件性质的认识会随着案情发展和审理需要不断进行“适时修正”,以期在罪名认定后的刑罚施行环节能够尽可能实现对案中各方权责关系的“平衡”裁断。

The Qing Dynasty officials’subjective determination of the nature of the cases under their jurisdiction often affects the application of subsequent specific legal provisions and the assumption and protection of the responsibilities and rights of the persons in the case.Although the two crimes of"killing caused by joking"and"killing caused by fighting"are obviously different in the textual expression level of the regulations,it is often difficult to accurately classify them in the actual application process due to the particularity of the plotting process of the case.This"overlapping"situation of the identification of the nature of the crime directly leads to the final review conclusion that cannot meet the public’s psychological needs of"balance between love and law"in terms of the choice of penalties and the severity of penalties under social standards.Through the Qing Dynasty Zhang Wentao’s written narrative of the trial process of the"Cao Jiaqing"case,we can find that the trial’s epistemological conclusions about the nature of the case continues to be"corrected in time"with the development of the case and the needs of the trial,with the hope that after the conviction is determined the penalty enforcement link can achieve as much as possible a"balanced"judgment on the power and responsibility relationship of all parties in the case.