清代訛詐案件探析
發(fā)布時間：2018-09-04 12:01
【摘要】：訛詐行為在清代是一種比較常見的行為,其基本行為模式主要表現(xiàn)為故意制造身體、物品的接觸,夸大損失,索要錢財,以達到非法占有的目的。這種模式中官府是被訛詐者用來作為索要錢財?shù)膱?zhí)行機構(gòu),通過官府判決來達到目的,具有很大的社會危害性,是本文研究的重點。本文第二章先是梳理了律例的規(guī)定。訛詐案件在清代是受到《大清律例》的規(guī)制的,在《大清律例》中雖然沒有專門的訛詐例,但是有關(guān)訛詐的條文有很多,也規(guī)定了訛詐應該參考誣告律、誤告律或者嚇詐律。同時,根據(jù)對案件的梳理,將清代訛詐案件分為四種不同的類型,分別是舟車類訛詐、扶人類訛詐、挑唆類訛詐以及憑空捏造財產(chǎn)類訛詐。對比這些案件的判決結(jié)果和律例的規(guī)定,發(fā)現(xiàn)了按律判決比較少、留待候?qū)彵容^多的特點。這兩個特點,主要是由于清代官員審理訛詐案件時候?qū)ψC據(jù)的運用以及一些思維模式產(chǎn)生的。接下來第三章就著重研究了清代訛詐案件的審理過程,其中又以證據(jù)以及判決作為重點。在證據(jù)中,首先從獲取證據(jù)的主體入手,分為主審官員、當事人以及保正保甲三個方面,接著從證據(jù)的種類以及效力分析,分為物證效力低下,鑒定意見為主,證人證言作為重要參考三個方面,隨后從證據(jù)的推理的角度分析,分為了與推理一致的采信和“五聽”制度對證據(jù)的影響兩個方面,最后還就個別案例中暗含的實質(zhì)上的舉證責任制度作了分析。接著證據(jù)的分析,引出了不同的判決。在所搜集的案例之中,只有極其個別的案例是按照《大清律例》的規(guī)定作出了判決,絕大多數(shù)的案例都是從輕判決或者做出判決但不做出處罰。其中,從輕判決的理由也不盡相同,有的是依律從輕,但也有的確是沒有根據(jù)的從輕。在分析了清代訛詐案件證據(jù)和判決的基礎(chǔ)上,結(jié)合清代的訴訟制度,本文第四章對清代官員在審理訛詐案件時候的思想做出了歸納總結(jié),即在維護統(tǒng)治秩序的前提下的自我查明意識、情理斷案以及勸民息訟四個方面。自我查明意識、情理斷案主要是其證據(jù)運用上的思想的歸納,而勸民息訟和維護社會秩序主要是判決上的思想的歸納。其中,自我查明意識是官員對自身要求的體現(xiàn),情理斷案是從過程、處境、評價三個方面論述,勸民息訟是清代審理訛詐案件的第一選擇。本文的最后一章,高度的評價了清代官員在審理訛詐案件時候?qū)ψC據(jù)的運用和判決的合理性,還將清代的訛詐同現(xiàn)代的碰瓷案件做了對比,并提出了一些建議。
[Abstract]:Blackmail was a common behavior in Qing Dynasty. Its basic behavior pattern was to deliberately create body, contact with goods, exaggerate losses and ask for money in order to achieve the purpose of illegal possession. In this model, the government is used by blackmail as the executive agency for asking for money, and it has great social harmfulness through the judgment of the government, which is the focus of this paper. The second chapter first combs the provisions of the laws and regulations. Blackmail cases were regulated in Qing Dynasty. Although there were no special blackmail cases in Qing Dynasty, there were many articles about blackmail, which stipulated that blackmail should refer to false accusation law, false accusation law or scare fraud law. At the same time, according to the combing of the cases, the blackmailing cases in the Qing Dynasty were divided into four different types, namely, the boat type blackmail, the supporting human blackmail, the inciting class blackmail and the fabricating property type blackmail. By comparing the results of these cases and the provisions of the statutes, we find that there are fewer judgments according to the law and more waiting for trial. These two characteristics are mainly due to the use of evidence and some thinking patterns in the trial of blackmail cases by officials in the Qing Dynasty. The third chapter focuses on the trial process of blackmail cases in Qing Dynasty, including evidence and judgment. In the evidence, first of all, starting with the subject of obtaining evidence, it is divided into three aspects: the presiding officer, the parties and Baozheng Baojia. Then, from the analysis of the types and effectiveness of the evidence, it is divided into the low effectiveness of physical evidence and the main opinion of appraisal. As an important reference, witness testimony is then analyzed from the point of view of the reasoning of evidence, which is divided into two aspects: the acceptance consistent with the reasoning and the influence of the "five listening" system on the evidence. Finally, the paper analyzes the system of burden of proof implied in individual cases. Then the analysis of the evidence leads to different judgments. Of the cases collected, only very few cases were adjudicated according to the provisions of the Qing Law, most of which were handed down or handed down without punishment. Among them, the reasons of light judgment are different, some are light according to the law, but some are baseless. On the basis of analyzing the evidence and judgment of blackmail cases in Qing Dynasty, combined with the litigation system of Qing Dynasty, the fourth chapter summarizes the thinking of officials in the Qing Dynasty when trying blackmail cases. In the premise of maintaining the ruling order, there are four aspects: self-ascertainment consciousness, reasonable trial and dissuasion. The self-ascertaining consciousness, the case of reason and reason is mainly the inducement of the thought of the application of evidence, while the persuading the people to litigate and maintaining the social order is mainly the induction of the thought of judgment. Among them, the consciousness of self-ascertaining is the embodiment of the official's own request, and the judgment of reason and reason is discussed from three aspects: process, situation and evaluation, and persuading the people to litigate is the first choice in the trial of blackmail cases in the Qing Dynasty. In the last chapter of this paper, the author highly evaluates the rationality of the use of evidence and the judgment of the officials in the Qing Dynasty in the trial of blackmail cases, and compares the blackmail of the Qing Dynasty with the modern cases of touching porcelain, and puts forward some suggestions.
【學位授予單位】：上海師范大學
【學位級別】：碩士
【學位授予年份】：2017
【分類號】：D929
本文編號：2222042
[Abstract]:Blackmail was a common behavior in Qing Dynasty. Its basic behavior pattern was to deliberately create body, contact with goods, exaggerate losses and ask for money in order to achieve the purpose of illegal possession. In this model, the government is used by blackmail as the executive agency for asking for money, and it has great social harmfulness through the judgment of the government, which is the focus of this paper. The second chapter first combs the provisions of the laws and regulations. Blackmail cases were regulated in Qing Dynasty. Although there were no special blackmail cases in Qing Dynasty, there were many articles about blackmail, which stipulated that blackmail should refer to false accusation law, false accusation law or scare fraud law. At the same time, according to the combing of the cases, the blackmailing cases in the Qing Dynasty were divided into four different types, namely, the boat type blackmail, the supporting human blackmail, the inciting class blackmail and the fabricating property type blackmail. By comparing the results of these cases and the provisions of the statutes, we find that there are fewer judgments according to the law and more waiting for trial. These two characteristics are mainly due to the use of evidence and some thinking patterns in the trial of blackmail cases by officials in the Qing Dynasty. The third chapter focuses on the trial process of blackmail cases in Qing Dynasty, including evidence and judgment. In the evidence, first of all, starting with the subject of obtaining evidence, it is divided into three aspects: the presiding officer, the parties and Baozheng Baojia. Then, from the analysis of the types and effectiveness of the evidence, it is divided into the low effectiveness of physical evidence and the main opinion of appraisal. As an important reference, witness testimony is then analyzed from the point of view of the reasoning of evidence, which is divided into two aspects: the acceptance consistent with the reasoning and the influence of the "five listening" system on the evidence. Finally, the paper analyzes the system of burden of proof implied in individual cases. Then the analysis of the evidence leads to different judgments. Of the cases collected, only very few cases were adjudicated according to the provisions of the Qing Law, most of which were handed down or handed down without punishment. Among them, the reasons of light judgment are different, some are light according to the law, but some are baseless. On the basis of analyzing the evidence and judgment of blackmail cases in Qing Dynasty, combined with the litigation system of Qing Dynasty, the fourth chapter summarizes the thinking of officials in the Qing Dynasty when trying blackmail cases. In the premise of maintaining the ruling order, there are four aspects: self-ascertainment consciousness, reasonable trial and dissuasion. The self-ascertaining consciousness, the case of reason and reason is mainly the inducement of the thought of the application of evidence, while the persuading the people to litigate and maintaining the social order is mainly the induction of the thought of judgment. Among them, the consciousness of self-ascertaining is the embodiment of the official's own request, and the judgment of reason and reason is discussed from three aspects: process, situation and evaluation, and persuading the people to litigate is the first choice in the trial of blackmail cases in the Qing Dynasty. In the last chapter of this paper, the author highly evaluates the rationality of the use of evidence and the judgment of the officials in the Qing Dynasty in the trial of blackmail cases, and compares the blackmail of the Qing Dynasty with the modern cases of touching porcelain, and puts forward some suggestions.
【學位授予單位】：上海師范大學
【學位級別】：碩士
【學位授予年份】：2017
【分類號】：D929
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，本文編號：2222042
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