清代官方的贱讼策略、影响与重思

The Influence and Reconsideration of Official Suppressing Litigation Strategy in Qing Dynasty

清代官方贱讼策略深受儒家意识形态影响,同时受人口、经济与社会变迁等客观因素支配。官员对争讼普遍持消极看法,并限制当事人启动诉讼,尤其是超越律例规定,对讼师的打击扩大化,批令大量讼案由民间调处。但是,纠纷的产生乃社会正常现象,在清中后期生存资源竞争激烈的背景下,诉讼量增长成为趋势。官员听讼,定分止争,为衙门治理社会矛盾的重要途径,也是王朝统治合法性的基础之一。诉讼自身存在一定的正当性,讼师亦非完全负面,而是具有重要的社会积极意义。官方的贱讼策略未取得预期目标,反而激化了当事人健讼。

Officials in the Qing Dynasty generally held a totally negative view of litigation,believing that litigation only consumed much time and property of the parties,and litigation was a great harm to the people.Officials tried to educate the public and limit the initiation of litigation,as if they enlightened them,the parties could be far from litigation.The countermeasure also showed that the officials'general delay in the acceptance of cases,direct refusal to hear the lawsuit,severe crackdown on the litigation masters,and so on.If anyone was suspected of giving advice or writing the petition for the parties,he may be judged as a litigation masters,and the risk of severe punishment followed very soon.Driven by the law,many local officials tried to catch the litigation masters.On the one hand,the official suppressing litigation was closely related to the limited local judicial funds.Affected by the financial difficulties and suppressing litigation strategy,the county yamen ordered a large number of disputes to the township security,gentry or patriarch,to replace the formal litigation channels.The final settlement of each case may always had its own special considerations.The result of such dispute settlement shared almost no reference value for other similar cases in the region,and it was difficult to provide sound guidance for the subsequent similar cases.On the other hand,it was difficult to exist a normal expression of the pursuit of private interests.Under the control of this ideology,suppressing litigation was even more strengthened,which had became the"ideological weapon"in the judicial work of local bureaucrats,and suppressed the demands of the parties for legitimate interests.Because of the increasingly severe livelihood,the parties would make the civil case"criminal narrative"and exaggerated the ordinary case as involved with"human life or deadly thief",which may cause the official attention.The official suppressing litigation strategy stimulated the litigiousness,which led to more stringent official litigation suppression.Therefore,the strategy did not achieve the expected target at all,and just produced more litigation.However,the emergence of disputes was a normal phenomenon in the society,and the timely and fair trial of cases by officials only contributed to local stability and reduced the number of lawsuits.The government paid too much attention to the mediation of litigation by the people,severely punished the litigators,and suppressed the start of litigation,which prompted some parties to resort to private violence for their interests,deteriorated the social order,and led to much huge trouble.In the daily government affairs of local officials in the Qing Dynasty,hearing litigation was the most important"public service"provided to safeguard the specific interests of the parties.In addition,the existence of litigation masters had important social significance.Some litigation masters took extremely severe legal risks to make a significant contribution to the protection of the reasonable interests of the parties.In the face of yamen judicial arbitrary,these litigation masters had indispensable significance to the parties who have no way to protect their own rights.Some litigation masters questioned the legitimacy of the judicial power of the yamen with professional knowledge and restricted the judicial discretion of the yamen,which was conducive to the long-term stability of the imperial court in the long run.But the bureaucracy had punished the litigation masters uniformly,stigatized the litigation masters,suppressed the civil forces that restrained the power of local officials,encouraged local officials to be more arbitrary.All above had became a vane of worsening social contradictions.