清代的大赦與死刑──制度及實踐中的法與「法外之仁」

Amnesty and the Death Penalty under the Qing Dynasty: Between the Legal System and Political Practice of“Benevolence outside of the law”

本文旨在研究清代大赦與死刑在立法與實踐上的關係，以釐清目前研究中對兩者之關係理解中存在的誤解。文章首先討論清朝的死刑制度及其歷史特徵，然後梳理清代大赦制度之演變，著重研究以「常赦所不原」為中心之死刑與「大赦」的相互之演變關係。最後，文章透過對乾隆登極年與乾隆三年秋審情況之比較，具體考察大赦年與正常秋審年中死刑犯人的赦免情況，以求了解清代大赦制度對死刑犯人的實際赦免效力及其實踐得失。

This paper intends to study the relationship between the death penalty and the practice of amnesty under the Qing dynasty. There is a tendency to believe that the ten traditional unforgivable Abominations were all crimes liable of capital punishment, that all crimes of homicide liable of the death penalty were unforgivable and that all unforgivable crimes were liable of capital punishment. This study attempts to clarify possible misunderstandings regarding these three aspects, relying on available Qing archives. The paper is divided into three parts. Firstly, three historical features of the death penalty under the Qing dynasty are highlighted and discussed: the particularly high number of legal capital offenses, the systematized distinction of three types of such offenses and the fully institutionalized practice of the Assizes. The second part focuses on the characteristics of amnesty under the same dynasty in general and its multiple relationships with the death penalty in particular. Finally, a comparative study is presented based on data concerning the condemned criminals of 1736 (a year of general amnesty granted by Qianlong on the occasion of ascending the throne) and 1738 (an ordinary year with Assizes being held), in order to observe in a concrete way the effective impact of amnesty on death-row inmates.