仁不屈法:清代法外施仁的特质及成因

Being Benevolent but not Against the Law:The Characteristics and Causes of Extralegal Benevolence in Qing Dynasty

仁不屈法是清代法外施仁的特质。清代法外施仁案件存在数量少,且司法过程谨慎。为顾及官员想法,清代皇帝法外施仁时强调,所施之仁不违法并在程序与实体上都要求合情理。受功利性的经济因素、政治需求及高度成熟的君臣博弈机制的影响,清代法外施仁具有存在的必要性。清代法外施仁案件相较前朝明显减少的特质,在立法上表现为皇帝要求官员守文并不断加重相关追责制度;在司法上表现为皇帝对不合圣意的法外施仁案件的审办官员处罚严厉,官员依靠法律的屏障作用主动规避追责制度。因此,清代法外施仁虽然在司法实践中对残缺、僵硬的法律规范具有一定的补充、矫正作用,但最重要的还是发挥了皇帝为了避免自身官僚化的工具作用。

Being merciful but not against the law is the characteristic of benevolence outside the law in Qing Dynasty.The number of cases of non-judicial benevolence in the Qing Dynasty was small,and the judicial process was cautious.In order to take into account the thoughts of officials,the Qing Dynasty emperors stressed that the benevolence they used should be legal and reasonable in both procedure and substantive aspects.Influenced by various economic factors,political demands and highly mature game mechanism between the monarch and the minister,it was necessary to apply benevolence outside the law in the Qing Dynasty.Compared to the previous dynasty,the Qing Dynasty had a significant decrease in cases of no-judicial benevolence,which was manifested in legislation where the emperor required officials to abide by the law and continuously strengthened the relevant accountability system;In judicial terms,it is manifested that the emperor severely punished the trial officials for cases of non-sacred benevolence,and the officials actively avoided the accountability system by relying on the barrier effect of the law.Therefore,although the Qing Dynasty's extraterritorial benevolence played a certain role in supplementing and correcting incomplete and rigid legal norms in judicial practice,the most important thing was that the emperor played a instrumental role in avoiding his own bureaucracy.