试析明清律中的“罪坐所由”

An Analysis of‘Conviction on the Doer'in Laws of the Ming and Qing Dynasties

“罪坐所由”作为明清时期确定罪犯刑事责任的一种原则,一般用于公罪追责,强调犯罪行为由何人实施,即由何人承担刑事责任。它是由唐律“各以所由为罪”“止坐所由”等规定发展而来,这些规定强调在公罪中只追究犯罪行为实施者的刑事责任,排斥连坐。而公罪连坐则是“各以所由为首”,即以犯罪行为的具体实施者为首犯追究刑事责任,其余官员节级连坐。到了明清时期,公罪连坐的律条较唐代明显减少,在公罪追责时更强调“罪坐所由”。这种变化,体现了中国古代公罪连坐范围逐步缩小的趋势。明清时期,“罪坐所由”还在衍生的含义上得以适用,即犯罪行为因何人所使,或犯罪结果因何人行为所致,何人即应承担刑事责任。此类追究刑事责任的规定在唐代甚至更早以前的刑事立法中就已经存在,而且也不限于公罪追责,明清时期通过立法、法律解释把其中的追责理念整合到“罪坐所由”这一原则之中。

As a principle to determine the subject of criminal responsibility in the Ming and Qing dynasties,'conviction on the doer'can be traced back to the Tang dynasty,when it was called'conviction on the person who performs the act',which was mainly used to determine the undertaker of criminal responsibility in duty crimes.The concrete perpetrator of the crime should bear the criminal responsibility.This system excluded the implication of the same organization,under which the specific perpetrator of the criminal act should be the first offender to bear criminal responsibility,and other officials took the responsibility in descending order.By the Ming and Qing dynasties,such regulations were reduced significantly,while'conviction on the doer'was emphasized in many duty crimes,which reflected the trend of gradually expanding the application scope of the principle of self-responsibility for guilt.At the same time,'conviction on the doer'was also used in another meaning.Namely,the people who instigated others to commit a crime,or who performed an act that indirectly caused criminal consequences,should bear criminal responsibility.Such provision of criminal responsibility already existed in the criminal legislation of the Tang dynasty or even earlier,and it was not limited to the accountability of duty crimes.In the Ming and Qing dynasties,this concept of accountability was integrated into the principle of'conviction on the doer'through legislation and legal interpretation.