淸代中國の刑事裁判における成案の法源性

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タイトル別名
  • A Study of Leading cases (Cheng'an) in Qing China's System of Criminal Justice, from the Viewpoint of Source of Law
  • シンダイ チュウゴク ノ ケイジ サイバン ニ オケル セイアン ノ ホウゲン
  • 清代中国の刑事裁判における成案の法源性

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抄録

This essay will consider the question of leading cases (cheng'an 成案) as a source of law in Qing dynasty criminal justice through the examination of the Conspectus of Penal Cases (Xing'an Huilan 刑案滙覽). In the Qing, the things that were recognized as the proper sources of law were the statutes (lu 律), the sub-statutes (tiaoli 條例) and the general circulars (tongxing 通行) among others. Leading cases, the subject of this inquiry, did not apply beyond the original judgement and were not to be quoted as a source of law, according to the official attitude of the government. However, this rule, which prohibited the citation of leading cases when rendering judgement, in fact had no binding force. Among the 4, 001 examples collected in the Xing'an Huilan examined in this essay, there are 465 examples where the leading case is referenced. On the other hand, there are only thirty-four examples where a reference to the leading case is rejected because of the prohibition of citation of leading cases. Moreover if we look at these thirty-four examples in view of the reasons for rejecting the leading case, they fall into three categories: A) those where the leading case was too old, B) those where the leading case was not considered to be a formal source of law, and C) those where the leading case did not conform to the existing rules. Nevertheless, if we examine the contents of these cases in detail, we can see that the leading cases were not rejected simply by virtue of their being leading cases. 0n the contrary, the real reason that reference to the leading case was rejected was because within government agencies there was inconsistency concerning the recognized facts of the case and the application of the law, and because it was necessary to bring these leading cases into conformity. It was not because the leading case was categorically rejected as a source of law.

収録刊行物

  • 東洋史研究

    東洋史研究 45 (2), 267-289, 1986-09-30

    東洋史研究會

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