Читать книгу Circulating the Code - Ting Zhang - Страница 9

As a part of the Qing bureaucracy, the structure and procedures of the judicial system were highly centralized and well-regulated. The judicial bureaucracy operated on four main administrative levels. On the lowest level, there were approximately 1,450 counties. As “father and mother officials” (fumuguan), county magistrates took the responsibilities of almost all major aspects of local governance in their jurisdictions, playing the most important role in the local judicial administration. They usually took charge of the initial investigation, conducted hearings, prepared reports, and suggested sentences of legal cases filed in county courts. Above the county level, there were about 180 prefects, whose main judicial responsibility was transmittal of cases from county-level to provincial-level courts. Serious criminal cases were usually reviewed and retried at the provincial level. Each of the eighteen provinces in China proper had a judicial commissioner (anchashi)—a full-time judicial official who took charge of the provincial court. The provincial courts’ judgments required ratification by the governor or governors-general, who usually prepared reports submitted to the central judicial bureaucracy for review. At the central level, there were three main judicial offices: the Board of Punishments (Xingbu), the Censorate (Duchayuan), and the Court of Judicial Review (Dalisi). At the top of the Qing judicial bureaucracy, these three high courts reviewed legal reports from provincial courts, made or suggested judicial sentences, and occasionally retried serious cases.⁸

One of the most important methods of the central government’s control over the judicial bureaucracy on local and provincial levels was the automatic judicial review of all serious cases that involved a sentence heavier than bambooing (chizhang). At the bottom level of the judicial bureaucracy, county magistrates could make final judgments and carry out sentences over only minor cases. All other cases involving sentences of penal servitude (tu), exile (liu), and death (si) were required to go through the strict judicial review process at various stages of the judicial ladder: from county, to prefecture, to province, to the central government, and in many cases, to the emperor.⁹ Although the automatic judicial review was not a Qing innovation, only the Qing seriously and effectively enforced it throughout the entire judicial system. Since the late Kangxi period, the central government established a detailed list of administrative sanctions for officials who committed mistakes in dealing with legal cases.¹⁰ In the judicial review process, if officials assigned unjustified penalties (e.g., by citing improper statutes or substatutes) or violated standard judicial procedures (e.g., by using unacceptable torture instruments during a trial), they endured punishments including administrative fines, demotion, cashiering, or even corporal penalties.¹¹

Suggesting a wrong sentence based on an inappropriate statute or substatute was a common mistake that led to administrative sanctions in the judicial review process. Qing laws strictly required officials to sentence legal cases based on statutes or substatutes from the Code. Article 415, “Citing Laws and Orders in Deciding Cases,” read: “Every official who is deciding a case must cite the statute of the law or the substatutes; any violation (i.e., failure to cite) will be punished with 30 strokes of the light bamboo.”¹² Although county magistrates did not always follow this law when sentencing minor cases in county courts, the law was rigorously enforced in all major cases that required judicial review in upper-level courts.¹³ The core principle of late imperial Chinese law was to “let the punishment fit the crime.” The Code attempted to foresee all kinds of possible variations of any given crime and to subscribe specific punishments for each specific crime. The aim of this differentiation was to maximize justice by allowing the law to fit as closely as possible with every foreseeable circumstance of a crime.¹⁴ In judicial practice, however, it was challenging for officials to find a “perfect” statute or substatute from the Code because scenarios of true crimes were often beyond the stipulations of the laws.

That Qing laws were constantly changing also increased the difficulty of choosing a matching statute or substatute for a crime. The main content of the Code was composed of statutes and substatutes. Statutes (lü) were usually fundamental legal principles, which were “the codification of moral truths retaining eternal validity irrespective of time or place.”¹⁵ The Qing rulers seldom changed or revised the statutes, and the number of statutes was reduced only from 459 to 436 between the early Qing and 1740.¹⁶ After 1740, however, the number and content of statutes remained largely unchanged until the late Qing legal reforms in the early twentieth century. Compared with the statutes, substatutes (li) were more specific and often ad hoc, reflecting changing imperial policies and social environment. The Qing rulers frequently revised, modified, added, or removed substatutes. The number of substatutes greatly increased over the course of the dynasty, from 449 to 1892.¹⁷ New substatutes generally came from three sources: imperial edicts, officials’ suggestions or court decisions (especially collective decisions made by the Board of Punishments) as approved by the emperor, and more often, specific case precedents (cheng’an).¹⁸ Since substatutes were more concrete, updated, and practical than statutes, judges usually preferred to make their decision based on a substatute if a statute and a substatute were both applicable to a case.¹⁹ Qing law required that officials make legal sentences based on the updated laws. According to article 43, “Deciding a Punishment according to Newly Promulgated Laws”: “Every law comes into effect the day it is promulgated.”²⁰ If an official cited an outdated statute or substatute to sentence a case, he could be sanctioned.

Judicial officials were under enormous pressure because of the demanding requirement to choose appropriate and updated statutes or substatutes when sentencing legal cases, the strict regulations in the judicial review process, and the potential harsh sanctions if any mistake was made. Most judicial officials received little or no formal legal training. The most important channel for officials to learn the laws and make judicial decisions was through reading a variety of law books, including the Code, collections of case precedents, and legal treatises. As the most authoritative book in the legal world, the Code was of ultimate importance to those working in the judicial system. Judicial officials and their legal advisors needed to look through the Code carefully to find and cite proper and updated statutes and substatutes in order to make judicial sentences, especially for the cases that would be scrutinized through the review process. The proper functioning of the extensive and highly regulated judicial bureaucracy required effective dissemination of usable editions of the Code and other updated legal information.