清代州县司法实践对制度的偏离

Deviations in Prefectural and County Judicial Practice during the Qing Dynasty

清朝继承了中下级官员应守文据法的体制传统,但自清中后期以降,州县官的司法实践偏离制度规定日益明显。审案只要有助于息讼止争,维持社会稳定,地方官多未守文据法,没有太多动力将所有命盗重案纳入审转复核流程。行政治理角色决定了地方官僚阶层缺乏“规则之治”的思维。衙门受制于司法资源不足、人口剧增带来的审案压力,多数案件之勘验、审理和解送难以遵照制度要求。地方官通过构建同上级的私人关系,规避了层层监督和严格司法责任。因此,地方衙门司法实践与制度之间存在较大背离。

The Qing Dynasty had inherited the institution structure of the middle and lower-level judicial system.However,beginning in the mid-Qing,divergences between judicial practice and the formal legal system were increasingly obvious in the review prosecutions and trial procedures.If the results of the local officials’decisions were conducive to the settlement of disputes and the maintenance of social stability,most of prosecutions failed to abide by the letter of the law,and there was not much motivation to bring serious homicide and theft cases into the process of judicial review.The country magistrates lacked the mentality of“governing by rules.”Yamen in different places were restricted by a lack of human,material resources,and population pressures,which seriously affected the operation of trials in accordance with the judicial system at the grass-roots level.By building informal interpersonal relationship with their superiors,local officials avoided the supervision of high-level officials and strict judicial responsibility.Therefore,the judicial practice of Qing Dynasty significantly deviated from formal system.