摘要
学界以往比较强调社会与国家在清代纠纷解决中的互动,对国家与个人关注不多。在清代州县讼事中,"状不轻准"是国家的基本立场,词讼的开启主要依赖于个人的艰难行动。当讼事进入候审以后,可能会因国家的消极理讼而陷于停滞,但个人仍试图通过诉禀对抗来推动诉讼进程。在讼事的审断阶段,国家往往希望"一讯而结",倘若个人对讯断结果不满,会拒绝具结,进而复禀乃至上控。但是,这类再审的请求同样会受到国家的压制。由于讼事对国家和个人而言,都是一种"不能承受之重",所以,在争讼的任何阶段,个人都没有停止和息的努力。一旦成功,国家也会乐观其成。国家对讼事的压制和消极,与个人的困难和积极,共同构成清代州县"压制型诉讼"的一体两面。"压制型诉讼"的解说,一方面意在强调清代的纠纷解决机制不容高估,另一方面也在提示国家的司法能力应该更加强化和开放。
In the past,researchers have emphasized the role of“the society and the state”,rather than“the state and the individual”,in dispute resolution in the Qing Dynasty.The suppression of litigation was the basic position of county yamens in the Qing Dynasty.Therefore,the initiation of litigation mainly depended on the difficult actions taken by the individual.In the process of awaiting trial,although the litigation might be stalled because of the passiveness of the state,the individual would strive to promote the litigation process through prosecution.At the trial stage of the litigation,the state often hoped to close the case by only one hearing.If the parties were unwilling to accept the outcome of the trial,they would refuse to sign the instrument of acceptance,sue again and even appeal.However,such requests for retrial would also be suppressed by the state.Since litigation was an“unbearable burden”for both the state and the individual,individuals would not give up their efforts to reconcile at any stage of the lawsuit.Once a settlement was reached,the state would also support the end of the litigation.The suppression and the negative attitude taken by the state on the one hand and the difficulties faced and the positive attitude taken by the individual on the other hand were two sides of the“repressive litigation”in the Qing Dynasty.The explanation of“repressive litigation”emphasizes the defects of the dispute resolution mechanism in the Qing Dynasty and suggests that the judicial capacity of the state should be strengthened and opened up.
出处
《法学研究》
CSSCI
北大核心
2018年第5期171-188,共18页
Chinese Journal of Law
基金
司法部项目"清代州县的司法运作实态研究"(16SFB3007)
中国法学会课题"清代州县司法中的社会力量与国家角色"(CLS(2017)D20)的成果
关键词
讼事
州县
国家
个人
压制型诉讼
litigation
county yamen
the state
the individual
repressive litigation
