舊中國の地方裁判と法律 : 法律に從わない判決が持つ意味

Abstract

In premodern China the statute law itself provided that a judge had an obligation to render all decisions in strict accordance to the statutes. However, an investigation of the reality of district court cases in premodern China brings to light in numerable cases through all periods in which judges rendered decisions that did not strictly follow statutes, even though applicable statutes existed. How can this phenomenon be understood? Some previous scholars have argued that this phenomenon can be regarded as evidence that judges of district courts in premodern China had the right of discretion in rendering judgement. However, in this inquiry I conclude that this phenomenon indicates only a violation of laws carried out by judges of district courts. How could such blatant violation of existing laws have continued to be carried out throughout premodern times? One answer to this question is that the penalty issued in an illegal decision was usually lighter than the lawful penalty would have been, so that the parties involved in a law suit rarely appealed to a higher court in objection to the decision of a lower court. As a result, district court judges' violations of laws were seldom detected by their superiors.