摘要
本文在研读《刑案汇览》、《驳案新编》、《汝东判语》、《吴中判牍》、《樊山判牍》、《徐雨峰中丞勘语》等一批有代表性的清代判例汇编的基础上 ,对清代司法实践中适用的法律渊源进行了系统考察。文章认为 ,在清代 ,不仅《大清律例》等国家正式法典在法院审判活动中是得到严格遵守的 ,而且成案、习惯法、情理、律学著作等也是司法官判案的重要依据。清代法律渊源的表现形式尽管是多元的 ,但在适用时 ,多元的法律渊源又被锤炼成一元的规则体系 ,以维护统一的社会秩序。清代各级审判机关在审理案件时都比较认真仔细 ,这是清代司法运作的主流 ;草率马虎、滥杀无辜的现象确实存在 ,但它不代表法律适用的整体状况。
On the basis of a number of representative Qing dynasty case books, the author examines the origins of the laws applied in legal practice during that period. The author suggests that in addition to official legal statues such as The Legal Code of the Great Qing Dynasty, legal precedent, customary laws, reason and works written by legal practitioners were also important in activities related to the law at that time. Although the Qing dynasty law was derived from numerous sources, in the application of the laws all these sources were bound together into a single legal system in order to maintain unified social order throughout the country. Judicial organizations at all levels were generally conscientious in their trials of criminal cases, and while carelessness and the killing of innocent people did occur, this was not the general rule.
出处
《中国社会科学》
CSSCI
北大核心
2001年第2期115-132,共18页
Social Sciences in China
