清代君臣的法外施仁博弈
蒋铁初清代君臣的法外施仁博弈
Game Playing Between the Monarch and Ministers around Leniency outside the Law in the Qing Dynasty
期刊名称：《法学研究》
期刊年份：
作者：蒋铁初
单位：
中文关键词：法外施仁;法内之仁;君臣博弈
英文关键词：leniency outside the law; leniency within the law; game playing between the monarch and ministers
中文摘要：
清代的法外施仁有法外宽待及依法宽待两种表现。死罪案件的法外宽待具有不确定性，既是君臣心目中的可益之事，还是君臣都能参与审判的案件，因而成为君臣博弈的对象。清代君臣在大臣发起法外施仁与君主主动法外施仁两个回合展开博弈。其中大臣发起法外施仁，又有大臣事先奏请君主法外施仁及大臣先法外施仁再奏请君主追认两种表现，后一种做法主要出现在晚清时期。君主主动法外施仁的同时，往往会要求大臣宣扬君主的法外施仁，还会通过特殊案件宣扬法外施仁以及在立法中宣扬法外施仁。结果是清代大臣接受了君主是法外施仁唯一主体的观念。君臣博弈形成了清代慎重法外施仁及法内之仁法外化的特征，也加剧了应当施仁案件不施仁及法外施仁偏向亲贵等问题。清代社会的特殊性对法外施仁实践产生了一定的影响。
英文摘要：
Leniency in the Qing Dynasty took two forms, i.e., leniency outside the law and leniency according to law. Leniency outside the law in capital cases was a matter of uncertainty as well as a beneficial thing in the eyes of the monarch and his ministers, and both the monarch and ministers could take part in the trial of capital cases, thus leniency outside the law became the object of game playing between the monarch and his ministers. In the Qing Dynasty, the monarch and ministers played two rounds of games initiated respectively by ministers and by the monarch around leniency outside the law. The ministers either requested the monarch to grant the leniency in advance, or gave the leniency before asking the monarch to recognize it. The latter mainly appeared in the late Qing Dynasty. When the monarch took the initiative to show mercy outside the law, he often asked the ministers to publicize it. In addition, the monarch also promoted leniency outside the law with special cases and in legislation, so that the ministers had accepted the idea that the monarch was the only subject of giving leniency outside the law. The game played between the monarch and ministers had led to cautious leniency outside the law and the externalization of leniency according to the law, and aggravated the problems of not giving leniency in the cases that leniency should be given and giving leniency outside the law in favor of relatives, friends and officials and so on. The particularity of the Qing society had a certain impact on the practice of leniency outside the law.
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