共犯關係下的「準服制以論罪」──以《刑案匯覽》「聽從尊長殺害以次尊長」類案件為例

在清代中國，兩個以上親屬共同侵害其他親屬的共犯行為屢見不鮮，而在這當中一種經常出現的情況就是最尊長迫使卑幼殺傷次尊長。案件起因既然在尊長，照理應該是最尊長負較重責任，但是由於準服制以論罪的原則，卑幼卻要負較重的刑責。本文以《刑案匯覽》所收錄的相關案件為例，研究清代官方在立法與司法實踐上的處置方式。本文認為，清代官方確實有心減輕卑幼的不利處境，但在「準服制以論罪」的禮教立法格局下，能做的還是有限，直接的結果就是罪刑不相當，而且在司法實務中產生令官方困擾的頂罪現象，使清代刑事司法程序「情罪允協」的理念大打折扣，而可以認為是清代法律體系內在的矛盾。而這更使卑幼陷入違抗尊長與觸犯法律的兩難處境。

關鍵字

共犯；殺傷罪；準服制以論罪；三綱；《刑案匯覽》

並列摘要

In late imperial China, criminal behavior involving two or more relatives acting against a third relative was not uncommon, as was the following situation: the most senior of the relatives forced the most junior one to harm a relative who was junior to the former but senior to the latter. Theoretically, the most senior relative should bear greater responsibility since the event resulted from his subornation. The most junior, however, usually received severer penalties due to the doctrine of "Meting Out Penalties According to the Grade of Mourning Clothes" (zhun fuzhi yi lunzui 準服制以論罪). This essay looks at relevant cases in the Xing'an huilan 刑案匯覽 (Conspectus of Penal Ccases) to examine how Qing officials dealt with such cases in the creation of laws and in judicial practice. We believe that the government indeed tried to commute the sentences imposed on the most junior, but the above-mentioned doctrine constrained the government's agency. The most direct result of this phenomenon was that the punishment was not commensurate with the crime and in judicial practice led to finding a substitute to take the punishment, which disturbed officials. This greatly diminished the concept of "balancing sentiment and crime" in Qing criminal procedure and can be seen as an internal contradiction within the Qing legal system. This left the most junior relative with a dilemma: to either disobey the command of the most senior (which "could" be punished) or to violate the law (which "must" be punished).