清末变通新疆命盗案件章程探析

On Flexible Regulations of the Death Penalt and Stealing Case in Xinjiang Province in Late Qing Dynasty

清朝平定阿古伯之乱后在新疆建省,在行政体制上废除伯克制等制度,建立各地道、府、州、县。在司法制度上废除了“查经拟罪”等做法,适用清律规定的实体法律和司法程序。在新疆融入全国统一司法制度体系的同时,采取了一些变通性的做法,主要体现在变通新疆命盗案件办理章程。对此,学界有评价认为是从新疆实际情况出发的,但实际上,变通命盗案件办理不利于国家司法的统一,同时在程序上损害了案件人犯的司法权利,也不利于提升案件审理质量。究其实际,只是新疆首任巡抚刘锦棠治新时期,为方便自身统治采取的一项权宜之计,至清末新政后予以废除。

After the establishment of Xinjiang Province in the Qing Dynasty,the government offices of dao,fu,states and counts were established in Xinjiang.In the judicial system,the practice of“checking the Islamic law and preparing for the crime”was abolished and applied the judicial procedures in the Qing Dynasty.The national unified judicial system was integrated into in Xinjiang,some flexible practices had been adopted,which were mainly embodied in the regulations for handling cases of the death penalt and stealing.In this regard,some scholars think that it was based on the actual situation in Xinjiang,in fact,the handling of the case of the death penalt and stealing was not conducive to the unification of national judicature,at the same time,it damaged the judicial rights of the criminals in the case and was not conducive to the quality of the case trial.In fact,it was only an expedient measure taken by Liu Jintang,the first governor of Xinjiang,to facilitate his rule,which was abolished after the New Deal in the late Qing Dynasty.