日治時期臺灣人與近代法律的交會──以張麗俊《水竹居主人日記》為例

Taiwanese Contacting with Western Law under Japanese Colonial Rule: Using Chang Li-jun's Diary as a Case Study

過去法律史學的研究大多著眼於成文法的規定，至於法律生活的實質內涵研究相對較少。日治時期臺灣人開始繼受與接受近代歐陸式法律制度，形成一套與傳統中國法迥異的法律體系。本文以目前關於繼受法律的內容研究為基礎，透過個案研究，以一位受傳統教育出身的臺灣仕紳，其壯年與一生精華皆在日治時期度過，利用主人翁張麗俊長達三十一年的日記內容，勾勒一位地方中上階層人在日治時期的法律生活。從張麗俊的日記中，可以發現近代法律對於民間生活的強大滲透力。雖然面對截然不同於傳統中國法的近代「權利」概念，即便他不瞭解法律背後的各種深刻意涵，卻能嫻熟地加以使用。遭遇紛爭時，首先尋求地方頭人調解或行政機關的民事爭訟調停外，利用西方式法院亦是張麗俊解決民事紛爭的最後有效手段之一。再者，辯護士也成為張麗俊與近代法律交會時的重要媒介，在本島人辯護士於1920年代出現後，其與辯護士互動關係超越了訴訟代理，他援引辯護士作為抵抗殖民政府的重要力量。相較於私法事件，張麗俊對於刑事司法的認同並不那麼高，他對於傳統中國法的部分質素仍舊難以忘情。整體來看，張麗俊積極且選擇性的容受這套殖民法制系統，這將有助於我們重新思考殖民統治下的法律，不光只是作為政治壓迫與經濟剝削的工具。

The previous studies of legal history mostly focused on the legal codes, but the contents of the legal life have not received enough attention. Taiwanese legal concepts diverged from those of Chinese legal traditional law and moved toward the modern Western law during the Japanese colonial period (1895-1945). Based on the studies of the reception of Western law, this article tries to draw the outline of a Taiwanese legal life according to the 28-year diary written by Chang Li-jun who was a traditional gentry under Japanese government. From the diary of Chang Li-jun, we noticed that the Western law effectively penetrated through the common people's life. What Chang Li-jun faced was the obvious difference between Western legal concept of 'right' and Chinese legal tradition. Even though he did not understand the profound meaning of the positive law, he could skillfully make good use of them. Besides questing for local gentry or using the administrative civil mediation to dealing with his disputes, Chang Li-jun also used Western-style courts as the last and effective measure to resolve his civil disputes. Moreover, lawyers became the bridge between Western law and Chang Li-jun himself. When Taiwanese lawyers entered private practices in the 1920s, the relation between Chang Li-jun and lawyers went beyond the agency of litigations and he cooperated with lawyers to resist the colonial authority. Chang Li-jun did not embrace the criminal law as much as civil justice and he did not forget the essential value of Chinese legal tradition. By this article, we can find Chang Li-jun electively and positively accepted the legal system of the colony. So understanding the dimensions of how Chang Li-jun contacted with Western law will help us to reconsider the character of Japanese colonial law, which was not only regarded as the instruments of political oppression and economical exploitation.