淸代訴訟制度における民事的法源の概括的檢討

DOI HANDLE Web Site オープンアクセス

書誌事項

タイトル別名
  • A General Survey of the Sources of Law concerning Civil Cases 民事 in the Judicial System of Qing 淸 China
  • シンダイ ソショウ セイド ニ オケル ミンジテキホウゲン ノ ガイカツテキ
  • 清代訴訟制度における民事的法源の概括的検討

この論文をさがす

抄録

In the judicial system of Qing China, two categories of procedure can be distinguished. One is that concerning cases of civil disputes and minor offences. A zhou or xian magistrate was fully authorized to settle them and execute minor punishments at his discretion. A higher authority intervened only when an appeal was filed by one of the litigant parties. The other is that of criminal cases involving banishment or more serious punishments, wherein the magistrate only prepared a provisional sentence and forwarded the case to the higher authorities for review. The present article takes solely the first category of procedure within its scope of observation. "Sources of law" should be taken here in the widest sense as far as possible : as anything which used to be thought about and referred to as a guideline for judgement. There are quite a few books edited in Qing time whose contents consist, in whole or part, of a collection of rescripts (pi 批) and decisions (yu 諭 or pan 判) given by a magistrate or a prefect in the aforesaid proceedings of civil and minor offence cases. We may call those collections panyu 判語in opposition to the collections of criminal cases known as xing'an 刑案. The present article makes use of panyu as the main body of materials to be analysed. Three elements were often on the contemporaries' lips : qing 情 (sensitiveness), li 理(reason) and fa 法(law), or more concretely, ren qing 人情 (human sense), tianli 天理 (natural law) and guofa 國法 (statutes of the dynasty). We may assume that those three were the sources of law in the meaning discussed above. Fa was actually almost tantamount to Daqingluli 大清律例. Reference to other texts of law and institutions was very rare. Consultation of precedents was so rare and faint as negligible. Daqingluli was referred to quite frequently. There was, however, a general understanding that the letters of law were not strictly binding but should be adjusted to the real convenience through consideration of qing and li. Li meant unwritten but generally accepted objective principles. One principle was universally applicable to one and the same sort of objects. For example, one should pay one's debt ; sons should not act independently while their father was alive. Those were the precepts of li. Qing in this context might be defined as the principle that each person involved in a litigation should be treated sympathetically considering particular circumstances of the case. l should like to suggest that it was a combination of three requirements : 1) Every circumstance of the case should be taken into account ; 2) Ordinary people's reasonable feelings, expectations and usages should not be ignored nor oppressed ; 3) Maintenance and recovery of good human relationships should be sought after. Qing was a factor which modified too stringent application of li and fa. Qing and li were referred to very often in combined form as qingli 情理 or zhunqingzhuoli 準情酌理 (through deliberation of qing and li). qingli, which might be rendered as common sense of equity in the Chinese style, was the most important source of law in civil and minor offence cases. It would be misleading, however, to say that fa, i.e., governmental written law was "despised". The latter was accepted as a partial formularization of the precepts of qineli, and should be consulted and interpreted as such. We cannot estimate li 禮 (rites) as an important source of law. They were referred to rather rarely and conceded priority to fa and qingli in force and effect. Local customs should not be enumerated among the sources of law according to my findings from the source materials. Certainly, diligent local officials endeavoured to be well informed of usages of the inhabitants under their jurisdiction. They did, however, not in order to extract therefrom any positive norm which should rule their judgements but to meet the requirements of the general principle renqing or qingli. All in all, positive --statutory, precedential or customary-- rules

収録刊行物

  • 東洋史研究

    東洋史研究 40 (1), 74-102, 1981-06-30

    東洋史研究會

キーワード

詳細情報 詳細情報について

問題の指摘

ページトップへ