清代讹诈案件探析

发布时间：2018-09-04 12:01

【摘要】：讹诈行为在清代是一种比较常见的行为,其基本行为模式主要表现为故意制造身体、物品的接触,夸大损失,索要钱财,以达到非法占有的目的。这种模式中官府是被讹诈者用来作为索要钱财的执行机构,通过官府判决来达到目的,具有很大的社会危害性,是本文研究的重点。本文第二章先是梳理了律例的规定。讹诈案件在清代是受到《大清律例》的规制的,在《大清律例》中虽然没有专门的讹诈例,但是有关讹诈的条文有很多,也规定了讹诈应该参考诬告律、误告律或者吓诈律。同时,根据对案件的梳理,将清代讹诈案件分为四种不同的类型,分别是舟车类讹诈、扶人类讹诈、挑唆类讹诈以及凭空捏造财产类讹诈。对比这些案件的判决结果和律例的规定,发现了按律判决比较少、留待候审比较多的特点。这两个特点,主要是由于清代官员审理讹诈案件时候对证据的运用以及一些思维模式产生的。接下来第三章就着重研究了清代讹诈案件的审理过程,其中又以证据以及判决作为重点。在证据中,首先从获取证据的主体入手,分为主审官员、当事人以及保正保甲三个方面,接着从证据的种类以及效力分析,分为物证效力低下,鉴定意见为主,证人证言作为重要参考三个方面,随后从证据的推理的角度分析,分为了与推理一致的采信和“五听”制度对证据的影响两个方面,最后还就个别案例中暗含的实质上的举证责任制度作了分析。接着证据的分析,引出了不同的判决。在所搜集的案例之中,只有极其个别的案例是按照《大清律例》的规定作出了判决,绝大多数的案例都是从轻判决或者做出判决但不做出处罚。其中,从轻判决的理由也不尽相同,有的是依律从轻,但也有的确是没有根据的从轻。在分析了清代讹诈案件证据和判决的基础上,结合清代的诉讼制度,本文第四章对清代官员在审理讹诈案件时候的思想做出了归纳总结,即在维护统治秩序的前提下的自我查明意识、情理断案以及劝民息讼四个方面。自我查明意识、情理断案主要是其证据运用上的思想的归纳,而劝民息讼和维护社会秩序主要是判决上的思想的归纳。其中,自我查明意识是官员对自身要求的体现,情理断案是从过程、处境、评价三个方面论述,劝民息讼是清代审理讹诈案件的第一选择。本文的最后一章,高度的评价了清代官员在审理讹诈案件时候对证据的运用和判决的合理性,还将清代的讹诈同现代的碰瓷案件做了对比,并提出了一些建议。
[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.
【学位授予单位】：上海师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D929

【参考文献】