从冕宁县档案看清代民事诉讼制度

【作者】 李艳君；

【导师】 张晋藩；

【作者基本信息】 中国政法大学 ， 法律史， 2008， 博士

【摘要】 在清代,以是否课以“徒”刑为分界,将其案件分为“自理词讼”和刑事案件。其中“自理词讼”是指由户籍、继承、婚姻、土地、水利、债务等问题引起的民事案件和因斗殴、轻伤、偷盜等行为处刑为笞杖或枷号的轻微刑事案件。而刑事案件是指人命、强盜、拐骗、邪教、私盐、光棍、窝赌、衙蠹等应判徒刑(包括徒刑)以上的重大和一般刑事案件。民事案件在清代习惯上称之为“户婚田土钱债”案件,因多发生在州县基层,且属于民间的私事,因此被称为“民间细事”。作为民事纠纷的最后救济手段,当民众对民间力量无望时,他们希望官府能够为其主持公道、伸张正义。于是,在州县衙门主持下,当事人、其他诉讼参与人共同参与有关民事案件的审理,而在审理民事案件的程序中所形成的诉讼关系及所进行的诉讼活动的总和,即可通俗地理解为民事诉讼。本文以冕宁县清代档案为依据,结合判牍、官箴书等文献资料,运用对比与比较、历史考察及动静结合等方法,重新梳理有关清代民事诉讼的一系列程序问题,进而论及整个清代的民事诉讼制度,并在此基础上对与清代民事诉讼制度相关的一些问题如法官判决的依据、民刑诉讼的区别以及有关我国古代民众的诉讼观等问题作一探讨。本文共分三部分:第一部分是序言。这一部分主要介绍了本论文写作的缘起、相关的学术成果、研究目的及意义、本文所使用的基本文献资料以及研究方法及思路。第二部分是本文的核心。本部分从民事诉讼的起诉与受理;堂讯、堂断与执行;上控等几个阶段介绍了清代民事诉讼的程序,并在此基础上对民事诉讼中官方的态度与民间的策略从思想行为方面进行了分析。本部分共包括五章:第一章:清代地方司法审判机构。本章主要介绍了清代地方司法审判机关及审级、民事诉讼管辖、清代县级机构和清代冕宁县机构。在清代地方政权中,并没有专门的司法机关,司法审判只是地方政权诸多政务中的一种。清代的地方政权机构主要有省、道、府(直隶州、直隶厅)、县(散州、散厅)四级。而其地方司法机构则为:院(督抚在清代官场中习称督院、部院);司(按察使司、布政使司);道:府、直隶厅州:厅州县。由于道、直隶厅州的设置,清代的地方审级也颇具特点,呈现出多样性:基本审级:院、司、府、县四级直隶厅、州的审级:院、司、道、直隶厅州四级直隶厅、州属县的审级:院、司、直隶厅州、县四级按照现代法律管辖的概念(民事诉讼中的管辖,是指各级法院之间和同级法院之间受理第一审民事案件的分工和权限)并结合清代的实际情况,清代的民事诉讼管辖,大致可分为级别管辖、地域管辖和身份管辖。在清代地方司法机构中,州县审判是全部司法审判的基础。知县是一县之内的最高司法官员。他拥有审理辖区内诉讼案的全权,即对民事案件的审理、判决权;刑事案件的审理和“拟判”权:并须对其判决负有法律责任。第二章:起诉与受理。起诉是当事人因其民事权益受到侵害或发生争议,而向官府提起诉讼请求,要求官府依法予以保护的诉讼行为;官府对符合法定起诉条件的予以接受的诉讼行为,称之为受理。作为起诉的标志,当事人要向州县衙门投递书状。书状要符合一定的格式,即状式。在清代各州县所统一印制的状纸上一般都印有关于状式的限制性要求,即“状式条例”。清代各地状式及“状式条例”略有差异,即使是同一地区的不同年代,其状式及“状式条例”也在不断的变化。状式必须符合要求,否则就会成为州县官拒绝受理的缘由之一。民事诉讼只能在规定的期限内受理,即每年的八月初一日到第二年的三月三十日。但即使是受理民词的放告期,也不是每天都受理民词。虽然清代也规定了一些例外,但总的来说,民事诉讼的受理在时间上是受到诸多的限制的。州县官接到呈词后,便根据案情及状式等拟写是否受理的批词。批词一般由幕友拟批于副状,官过目画押,然后墨笔幕友录于正状,之后过硃发榜。批词分为“准”、“不准”两类。受理称为“准”;拒绝受理的称为“不准”。第三章:堂讯、堂断与执行。本章介绍的内容主要有堂讯、堂断与执行;覆讯;冕宁县少数民族的民事诉讼问题。当官府决定受理当事人的诉讼请求后,就会传唤相关人证在指定的期日内到县衙接受堂讯。而有些当事人也会在此期间接受调处而和息并向官府提出和息销案的请求。一般说来,对于简单的民事案件,州县官当堂即可作出裁决又称堂断,之后,所有与案件有关的人员都要作出是否接受法官判决的遵依,以此标志着案件的审理完结。对于判决的执行,既可当堂执行也可限期执行。由于各种原因,有些案件需要经过两次、三次甚至多次堂讯,这被称作覆讯。覆讯的程序与初审程序完全相同。对于民事案件的审理时间,清代制定了承审限期、逾限之责任及展限等相关规定。并通过“循环簿”、州县对复杂民事案件的向上请示、民众的上控及例行的对州县官的监督考绩等,实现对州县民事审判的监督。冕宁县是一个汉彝杂居的地区,彝族民众又被称作“夷人”。无论是夷人还是夷汉之间,其案件都由冕宁县管辖并按汉族是审判程序进行,但是在法律的适用上却有所区别,即夷人之间的词讼适用夷例,刑事案件则适用《大清律例》;而夷汉之间则无论是民事还是刑事案件则一律适用大清法律。第四章:上控。本章介绍了上控所应具备的条件、上控状式、上控案件的审理。并总结出上控案件的审理特点:1、上控案件一般多为书面审理;2、在审理过程中,维持原判决的很少,或多或少都要进行改判;3、无论是上控到府还是上控到省,上司官吏多直接批示由州县审理,或要求当事人直接到县投案,或批示由某县审理;4、受上司批示审理上控案件的下级机关要将审理的情况向其详报,而上级司法机关在接到下级机关的详报后也要对其作出批示,或赞同或部分、全部改判或指示其再重新审理等。5、同在县级的告状一样,上控案件也没有次数的限制。第五章:当事人及法官在民事诉讼中的思想行为。本章首先介绍了清代民事诉讼的历史背景,并在此基础上对当事人及法官在民事诉讼中的思想行为进行了阐述与分析。在清代民事诉讼逐渐增多、州县司法资源相对有限、民事诉讼费用的支出尤其是由于差役的勒索等而形成的“讼累”等,都使得小民百姓的民事诉讼面临着种种艰难。作为民间纠纷的最后救济手段,小民百姓不得不求助于官府。为了在不利的条件下使得其诉讼请求能为官府所受理,他们必须采取一些策略:强调自己起诉的被迫性;道德性语言及文字修辞的运用;法言法语的运用;夸大案情;屡控不休,缠讼不止;反控。而公务繁杂的州县官们,面对日益增多的民事案件,他们或面对现实,积极应对;或消极对待百姓的诉讼请求。第三部分是本文的结束语。在这一部分,笔者主要论述了与民事诉讼相关的一些问题。诸如民刑诉讼的不同;民事诉讼的特点;如何看待清代民众的诉讼观及清代民事诉讼的法源等。其中,对于清代民众的诉讼观,笔者认为,无论是“好讼”还是“忌讼”都不足以对其进行概括。当纠纷发生时,民众是否选择诉讼既与诉讼环境有关,也与个体的差异有关。无论古今,虽然诉讼环境迥异,但人们是否选择诉讼的心理基本相同,所以,对于清代民众的诉讼观我们不能一概而论。有关清代的民事诉讼法源,一直是一个尚未定论且存有争议的问题。笔者认为,清代法官断案的依据主要为:有法律依法律;无法律依习惯;无习惯依情理,三者依次选择适用。但司法实践中,情理的适用频率最高。更多还原

【Abstract】 In Qing Dynasty, cases were divided into lawsuits under a magistrate’s own jurisdiction and criminal cases by "penal servitude". In this category " lawsuits under a magistrate’s own jurisdiction " means civil cases caused by household register, succession, marriage, land, water conservancy, debt etc. and slight cases caused by fight, flesh wound, theft etc which lead to beat or JIAHAO" punishment. On the other hand, criminal cases means important cases caused by human life, robbing, kidnap, superstition, private salt business, ruffian, gamble shelter, bribe etc which lead to penalty penal servitude (including penal servitude).Civil cases were always named as "private cases" in Qing Dynasty because they often happened in grass-roots in counties and towns, and they were private affairs among the folks. Therefore so called "Folk Trifles".As the final remedy for civil dispute, when the people felt hopeless towards civil solutions, they would wish the government to pursue justice for them. Thus, the parties involved and other participants in proceedings would all participate in hearing and settling the cases in the administration of community. All the legal relations and legal actions along with this proceeding sum up could be understood as civil procedure.This thesis is a re-arrangement of civil procedure issues in Qing Dynasty which based on files from Qing Dynasty in MianNing County, combining with Pandu and Guanzhenshu document and material, and then follows reference to the whole system of Qing Dynasty civil lawsuits. Also it gives an eye on issues like the rules for the judges to decide cases, differences between civil and criminal lawsuits, notion of ancient people towards lawsuits etc. which all related to civil lawsuit system in Qing Dynasty.Thesis is divided into three parts:First is the preface which presents the origin of this thesis, related academic achievement, purpose and significance, fundamental document and material and research approach of the thesis. Second is the core of the article. This part step by step presents civil procedure in Qing Dynasty from prosecution and acceptance, hearing, deciding and carrying out the case to appealing. On ground of this it also analyze the government attitude and civil strategy towards civil lawsuits.This part including five chapters:First chapter: local judicial organ in Qing Dynasty. This chapter mainly introduces local judicial organ and levels, civil jurisdiction, county institution and Mianning county organ in Qing Dynasty.In the local regime during Qing Dynasty, there was no specific judicial organ. Judicial trial was just one of the large quantities governmental affairs.Local regime mainly included Province, Dao, Prefectures, and County four levels. Whereas judicial organ were classified as Province, Si, Dao, Prefectures or Independent Sub prefecture, Department and County.Because of the settings of Dao and Independent Sub prefecture, Department, local judicial levels in Qing Dynasty turned out to be diverse:Basic level: Province, Si, Prefecture, County all together four.Independent Sub prefecture, Department level: Province, Si, Dao, Independent Sub prefecture, Department all together four.Independent Sub prefecture, Department County level: Province, Si, Independent Sub prefecture, Department County all together four.According to modern concept of jurisdiction combining with practical situation of Qing Dynasty, civil jurisdiction could be categorized as hierarchy jurisdiction, region jurisdiction and status jurisdiction.In local judicial organs, County trial is the foundation of all judicial decisions. District magistrate is the highest level judicial official in the county. He owns all the power to decide cases falling in his territory, namely hearing and deciding civil cases, hearing and quisi-deciding criminal cases, and he is also responsible for his decisions.The second chapter: prosecution and accepting a case. Prosecution is a legal action being taken to the feudal office for protection when one party’s civil rights and benefits are invaded or controversial; the acceptance action from the feudal office if the case matches the conditions is called accepting a case. As the symbol of prosecution, the party needs to deliver documents to the feudal office. They must accord to certain style namely condescendence style. During Qing Dynasty every county has requirements on the printed out documents namely rules of style. Different places have different documents style and rules, even in the same area they varied from time to time. The officer could refuse to hear the case if it did not fulfill the requirements.Civil lawsuits can only be heard during regular time, which was August 1st to 30th March the second year. However cases were not heard everyday even during this period. In all the acceptance of civil lawsuits had a number of limitations in time during Qing Dynasty although there are some exceptions.After the County officer received the complaints, he would write endorsement whether the case was accepted according to the detailed condition. The endorsements were usually quisi written by the vice officer and then submitted to the officer in charge to sign it.The endorsements are categorized as allowed or not allowed. Acceptance is named as allowed, not allowed means rejection to hear the case.Chapter 3: Inquisition, judgment and execution. This chapter mainly introduces Inquisition, judgment and execution; retrial and minority people civil lawsuits as well.After county government decided to accept party’s prosecution, relative witnesses would be summoned to appear before the magistrates. At the same time there were also some parties accepting mediation and bring together to an agreement. Usually, as regards to simple civil cases, county magistrates could reach judgments just in courtroom, then all the parties need to commit themselves to follow the trial which meant and end to the case. But for the execution of the case, it could be taken out both in court or in a limited period.For various reasons some cases need to go through more than two inquisition which was called retrial. The procedure of retrial was the same as the first trial.In Qing Dynasty there were time limitations for hearing the case and the magistrates were supervised through various means such as counseling, appealing from people and job reviewing.Chapter 4: Appeal. This chapter presents the requirements, styling papers and inquisition of appealing cases. There are five features for appealing cases in conclusion here follows: 1) appealing cases are often trialed by written documents. 2) There are few affirm the original judgment, but change the original sentence more or less. 3) No matter appealing to Fu or Province, the superior always comments the county to retrial it or requires the party straightly prosecute to the county for protection.4) the lower governments need to report the final judgment in detail and the superior also need to give detailed comments on it including agreement, partly agreement or retrial etc. 5) As the same with county prosecution, appealing cases had no limitation in frequency.Chapter 5: Thoughts and actions of parties and judges in civil lawsuits. This chapter firstly introduces the history background of civil lawsuits in Qing Dynasty, and then based on this make expounding and analysis in the thoughts and actions of parties and judges in civil lawsuits.With more and more civil lawsuits coming out, there were only limited county courts and the expenses especially the blackmail by the batmen lead to difficulties for citizens to claim their rights.As the final remedy for civil disputes, citizens had to ask the government for help. In order the cases to be accepted by the government, they must take some actions to emphasis that they were forced to do so. Moral words and legal jargons usually appear in the prosecution and exaggerating the cases. The only result was that no ends to cases.And to the busy magistrates, when faced with more and more coming cases, some positively helped out but some only negatively treated the whole affairs.The third part is the peroration. In this part, some relative questions are discussed of civil lawsuits, such as difference between civil and criminal lawsuits, the features of civil lawsuits and how to look on the attitude of Qing Dynasty and legal resources of law etc.The attitude to lawsuits could not be concluded only by pro or con lawsuits. When disputes happened, the legal environment had much influence on the people whether to take legal actions and difference of single people as well. No matter now or before, people’s mental status towards law were basically the same. Therefore nothing can be concluded just in one word.Considering about the legal resources of civil law in Qing Dynasty, there are disputes existing all the time. As far as I know, the main basis are: obeying the law if there is law, obeying the customs if there is no law, obeying the reasons if there is no customs, as in turns. Actually reasons are often referred to in practice.更多还原