明淸中國의 民事裁判의 實態와 性格

Abstract

In order to contribute to the comparison between the civil trials of Joseon Korea, Ming-Qing China and Tokugawa Japan, this essay discusses four topics on the Chinese case; the position of civil trial in the dispute resolution system, the available historical materials about it, the characteristics of the procedures found from trial documents, and the normative basis of the civil trial. In Chapter I, it is elucidated that (1) a considerable number of civil disputes were brought to the state in Ming-Qing China, (2) however, the nature of the civil trial conducted by the state was not so different from that of private dispute resolution. Both were aimed not at realizing objective rights based on given law, but at teaching the guideline for mutual consent among the parties or remonstrating the bad guy who does not know the spirit of companion, (3) also in the state court system, civil cases were treated as ‘minor cases’ 細事 that needed no severe punishment and could be left to the district magistrates. In chapter II, I introduce three kinds of historical documents related to civil trials, the books collectively referred to as ‘Pan'yu’ 判語 which are various collections of judgments by the various magistrates, the ‘district archives’ 州縣檔案 which are the original documents remaining in some district offices, and the ‘official transcript of judicial documents issued upon request of the parties’ 抄招給帖. In Chapter III, I show the structure of a single document of district archives, introduce characteristic documents, and point out some procedural features that I have noticed through document research. In chapter IV, I introduce the controversy between Prof. Philip C. C. Huang and Shuzo Shiga over the characterization of civil trials, and consider on the nature of the authority and power to make a trial in traditional China. Through these two chapters, the following points are clarified. (1) Civil trials in Ming Qing China were not carried out in the way of Western style of applying general rules to individual cases. The ideal judgments they were looking for are the ‘public opinion of the world’ 天下之公論 on the each individual cases, they were discovered by all participant every once in every trial. (2) All facts could be brought out as arguments under the individualist trial, so dispute settlement was necessarily a matter of choosing facts to focus on. Judges tried to select facts to be emphasized and make an official story about the cases that could be shared by both parties. Once the official story was established, the issue disappeared and the dispute resolved. (3) The traditional Chinese civil trial did not have the function to select some regularities (habit) in society and upgrade them to institutional civil law. In order to discuss the form of existence of civil law, it is necessary to turn eyes out of court.