中國清代的民事訴訟與“法之構築”－－以《淡新擋案》的一個事例作為素材

過去10年，日本、美國及中國的中國法律史學者針對清代民事糾紛的庭審性質發生了激烈的爭論。這一爭論的關鍵在於－－“民事糾紛的法庭裁決是判決抑或調解”以及“裁決是否基於法”？很自然，對此問題的回答取決於對“判決”與“法”的定義。而弄清楚清代法庭的所作所為則有助於我們對這些概念的了解。第一章是對一系列淡水擋案中的家產分割案卷（擋案號：22615）的分析，該擋案是19世紀晚期台灣地方官員的行政記錄。家產分割案卷中有41份是在一年半時間內由糾紛當事人及親友、政府官員從糾紛的開頭到結束所提供的。第二章是在第一章分析的基礎上作如下展開：(1)清代法庭的解紛框架並不是官員通過法律推理去尋找諸如“土地法”或“家族法”等可適用的法律，而是基於司法官員綜合衡量當事人的利益及其直覺平衡的能力。一個成功的裁決被認為是公正的並與“情理”保持一致。(2)“情理”並非存在於訴訟或官員的裁決之前，也不是官員做出裁決時可資“依據”的，而是在官員成功了斷糾紛的裁決中顯現出來。(3)法庭的裁決也許並非是將既定規範適用於具體個案的過程，而可被理解為獲取雙方當事人以及關注該案件的公眾共同認知的過程。官員的裁決可以被描繪為案件有關共同認知之“公論”的清晰表述。由此，法庭有權促使當事人接受這個裁決。“情理”在具體案件裁決中的不同表現這個意義上可以叫做個別主義。同時，“情理”在作為正義之同感這個意義上也可以叫做普遍主義。也許在最廣泛的定義上，“情理”大致可以當作“法”來看待，儘管它並不作為規範以決定裁決。

For over a decade vigorous discussion has been taking place among scholars of Chinese legal history in Japan, the United States and China on the nature of the court decision in civil disputes during the Qing period. The focal point of the discussion concerns the questions “was the court decision on civil matters a judgment or mediation” and “was the decision based on the law or not”? Naturally, the answers to the questions depend on the definitions of“judgment”and“law.” Clarification of what was being done in the law courts of Qing China would help enrich our understanding of these concepts. Chapter 1 is an analysis of a series of documents in a dossier for a case concerning a dispute over household property division (Document number 22615) in Dan-Shui Archive, a collection of administrative records of a local government in Taiwan during the late nineteenth century. The forty-one documents in the dossier were produced by the parties in the dispute, their relatives, and the government officials from the beginning to the end of the dispute over a year and a half. In Chapter 2, based on my analysis in the first chapter I present the following theses: (1) the framework of dispute resolution in the courts of the Qing government did not rest on legal inference to find applicable law such as“land law”or“family law.”Instead, it rested on the judge’s ability to comprehensively evaluate the interests of the individuals involved and his intuitive sense of balance. A successful decision was regarded to be fair and consistent with“qingli”(reason and human feelings). (2)“Qingli” was not regarded as something that existed prior to the litigation or judge’s decision. It was not something that the judge could“rely on”in making his decisions. It was“revealed”in a decision that successfully brought the dispute to an end. (3) It would be possible to understand decision-making at the court not as the process of application of a given norm to the decision on a particular case. Instead, we can understand it as the process of arriving at a shared sense of balance between the parties involved as well as the public which observantly followed the case. The judge’s decision can be characterized as an articulation of the“commonly shared opinion”of those who were involved. Because of this, the court had the power to compel the parties in the lawsuit to accept its decision. (4) In a sense,“qingli”is particularistic because it appears in various manifestations in ad hoc decisions on numerous kinds of cases. At the same time, it is universalistic because it is an expression of the commonly shared sense of justice. Perhaps it can be appropriately called“law” in its broadest definition. Still it was not regarded as the norm for decision making.