清代捕亡制度研究

发布时间：2018-06-25 14:29

本文选题：捕亡 + 拒捕　；参考：《西南政法大学》2009年硕士论文

【摘要】： 中国传统的捕亡制度是关于缉拿犯罪分子所涉及的各个方面的权利义务的规定。捕亡制度发展到清代已经非常完备,具体包括了以下几个方面的制度设计: 第一部分是捕亡对象及其相关责任,捕亡对象是捕亡行为的客体,主要有以下几类:第一类是普通人犯,即犯罪之后未被羁押尚待缉捕的人犯,这些人犯实践中占捕亡对象的大部分,然而其法律关系比较单纯,规制相对简单。其相关责任主要是由拒捕杀伤应捕人员的行为引起的。第二类是徒、流、军、遣犯,这类人犯的共同特征都是犯罪后经过判决被限制了人身自由又不在监狱羁押的人。这类人犯经过了缉捕、判决、押解、服役等几道法律程序,法律关系比较复杂涉及的责任主体也较多。其责任加重的原因主要是脱逃。第三类是狱囚,狱囚是犯罪后被缉捕,羁押在监狱等待的人犯。狱囚相关法律责任主要是越狱行为引起的。第四类是解犯,解犯是指犯徒罪以上押解到指定机关审理的人犯。解犯责任加重的原因也是脱逃。第二部分是捕亡主体及其捕亡职责。清代捕亡制度中,捕亡的主体种类比较多,笔者依据其身份和职责的区别将这些主体划分为五类。第一类是州县官,州县官负责全面的地方事务,当然地负责领导人犯的缉捕工作并对缉捕人犯的行为要负总责。第二类是捕官和捕役,这类主体是州县衙门缉捕人犯的主力军,与之平行的几类主体负责协助缉捕的工作。第三类主体是狱官和狱差,这类主体对狱囚越狱要承担责任其中一项责任就是协助抓捕越狱人犯。第四类主体是解役,解役对押解途中的人犯脱逃当然地负有责任,如果能在限内将人犯捕获,其责任可以适度减免。第五类主体是保甲和团练,这类主体并非经制官役,本质上属于民间组织,但也承担部分官府职能,其中重要一项就是维护地方治安协助抓捕逃犯。第三部分是捕亡制度在程序方面的规定,主要有三个方面的内容。其一是有关缉捕人犯的地域管辖方面的规定,为了能够早日将人犯缉拿归案,在地域管辖方面清代捕亡制度不注重个分工,而注重配合,要求犯罪地州县衙门负责主要的缉捕工作,同时相关州县也有必须协助缉拿而不能存在畛域之见。其二是有关缉捕人犯具体执行方面的规定,即缉捕人犯通常事先要由州县衙门签发捕票才能进行,如果捕役没有捕票擅自缉捕就要承担相应的法律责任。其三是有关缉捕期限方面的规定,清代捕亡制度针对不同的人犯规定了不同的缉捕期限,如果限满不获则要收到相应的处分。有关清代捕亡制度的司法实践问题,笔者在阐述每项具体制度之后,都会进行相关案例分析,从案例分析中也能看出一些制度漏洞以及实践背离制度的情形。最后,笔者从宏观上对清代捕亡制度的价值取向以及司法实践状况进行了分析,其价值取向主要是统治秩序至上和民本主义两个方面,而司法实践状况得出的结论是由于最高统治者和法律执行者利益取向的背驰,最高统治者基于维护统治秩序一味地对制度执行者实行高压政策,而实际中高压之下并不能有效地保证逃犯的缉捕率,反而导致实践操作中违规现象比比皆是。
[Abstract]:The traditional Chinese perish system is a provision about the rights and obligations of all aspects involved in the arrest of criminals. The system of capture and death has been developed into the Qing Dynasty, which includes the following aspects of the system design:
The first part is the object of the arrest and its related responsibilities. The object of the arrest is the object of the perish act, which mainly includes the following categories: the first category is the ordinary human offender, that is, the people who have not been detained after the crime are not still to be arrested, and the majority of these people are in practice. However, the legal relationship is simple and the regulation is relatively simple. The related responsibility owners are relatively simple. The second categories are the apprentice, the flow, the army, the offender, and the common characteristics of such persons are all those who have been sentenced to be limited to the freedom of the person and not in prison after the crime. This kind of person has gone through several legal procedures, such as arrest, judgment, escort, service and other legal procedures, and the complex liability of the legal relationship. The main reason for the aggravation is to escape. The third types are prison prisoners, prison prisoners are arrested after crimes and prisoners are held in prison. The legal responsibility of prison is mainly caused by the act of escaping from prison. The fourth kind is the offender, and the solution is the cause of the aggravation of the offense. And also escape.
The second part is the main body of the arrest and its duty of arrest. In the Qing Dynasty, the main types of the arrest were divided into five categories. The first category was the state county magistrate, the county magistrate was responsible for the overall local affairs, and of course, responsible for leading the arrests and arresting people. The second category is to catch officers and capture service, the main body of which is the main force for the arrest of people in the state county yamen. Several kinds of subjects parallel to it are responsible for assisting the arrest. The third types of main bodies are prison officials and prison differences. The main body of this kind of subject is to take responsibility for the prison prison offside. One of the responsibilities is to assist in the arrest of prisoners. The fourth main body is the solution of service. Of course, it is responsible for the escaping of the prisoners on the way of escort. If they can capture the prisoners within the limit, their responsibilities can be appropriately reduced. The fifth types of main bodies are protection and reunion. The main body is not the official service, which is essentially a folk organization, but also assumes some government functions. The important one is to maintain local public order and assist in the capture. Escaped convict.
The third part is the regulation of the arrest system in the procedural aspects, mainly in three aspects. One is the provisions concerning the territorial jurisdiction of the arrests. In order to be able to return the criminal to the case as soon as possible, the arrest system of the Qing Dynasty in the area of regional jurisdiction does not pay attention to the division of labor, and the government should be responsible for the main responsibility of the Yamen in the crime prefecture county. At the same time, the relevant state and county have to assist the arrest and not exist in the area. Secondly, the specific enforcement of the arrests, that is, the arrests usually have to be issued by the state County Yamen in advance to carry out the ticket. In terms of time limit, the arrest system in Qing Dynasty prescribed different arrests for different human offenders. If the limit is not available, the corresponding punishment will be received.
In relation to the judicial practice of the Qing Dynasty's arrest and death system, the author will carry out a related case analysis after each specific system. From the case analysis, we can see some system loopholes and practice deviating from the system.
Finally, the author analyzes the value orientation and judicial practice of the Qing Dynasty's capture and death system from the macro level, and its value orientation is mainly two aspects of the supremacy of the ruling order and the people based doctrine, and the conclusion of the judicial practice is that the supreme ruler and the legal executor are in the back, and the supreme ruler is based on the maintenance. The rule of rule makes the system executor carry out the high pressure policy blindly, and the actual high pressure does not guarantee the arrest rate of the fugitives effectively, but causes the illegal phenomenon in the practice to be abound.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D929

【引证文献】