清代“顶凶”现象成因研究——以王树汶冤案为中心

A Study on the Causes of the Phenomenon of“Replacing Criminals”in the Qing Dynasty-Focusing on the Case of Wang Shuwen

“顶凶”是传统代刑行为的异化。王树汶冤案是清代一则典型的顶凶案例。从此例冤案来看,司法腐败不是清代“顶凶”行为泛滥的根源。官吏分途下对于吏的生存、发展权的漠视,对强盗案司法效率的过度要求,将政治稳定置于个案正义之上以及司法官与士人在报应理念下对道德正义的追求,共同导致了“顶凶”冤案的发生以及覆审翻案的艰难。尤其是对道德正义的追求,使顶凶行为具备了理论“正当性”,更是“顶凶”冤案长期存在的法文化根基,也因之成为冤案预防与纠正的难中之难。治理“顶凶”行为,预防与纠正冤案,必须在保障司法官吏的生存权、发展权基础上,尊重司法程序客观规律,协调法律正义与政治需求、社会道德标准的关系。

Replacing criminals was the evolution of traditional scapegoating behavior,it can be seen from Wang Shuwen’s case that judicial corruption was not the root cause of the rampant practice of the replacing criminal phenomenon in Qing Dynasty.The disregard for the survival and development rights of local staff under the separation of the officials and local staff,excessive demands on judicial efficiency in robbery cases,put political stability ahead of case justice and the pursuit of moral justice by judges and literati under the concept of retribution,all led to the occurrence of replacing criminals and prevented wrongful convictions from being exonerated.In particular,the pursuit of moral justice gave theoretical“legitimacy”to the act of replacing criminals,it also was the foundation of the legal culture for the long-term existence of replacing criminals.Therefore,it became the difficulty in preventing and correcting the wrongful convictions.In order to control the phenomenon of replacing criminals,prevent and correct the wrongful convictions,we must pay attention to protecting the basis of judicial officials’right to survival and development,respect the objective law of judicial procedure,reconcile legal justice with political needs and social moral standards.