摘要
本文旨在探討出現於十八世紀的「漢奸」現象，從這一現象之官方認定過程出發，討論在此過程中相應呈現的一系列司法活動及其特徵：如專項立法闕如，適用的司法資源多樣重疊，司法程序劃約等問題。這一司法對象的認定始於康熙朝終於乾隆朝，呈現了清帝國在將西南各民族地區納入帝國版圖中遭遇到的系列行政、財政、軍事、「化內」與「化外」的衝突及其解決方式。
This paper attempts to examine an“invisible”judicialphenomenon, that of“Hanjian”(Han lawbreakers), identified as a new criminal category during the 18th century, at the time of Yongzheng's administrative reform in the Southwest of China. Through a close analysis of memorials and imperial edicts, we firstly try to reconstruct the process of this official identification of new criminals. We attempt to show how the imperial government's knowledge about the Miao people changed in the course of the application of this policy, how the lawmaker adjusted its judicial
ressources to deal with newly encountered problems and what the consequences of this policy were for the Miao regions in particular and the
Manchou Empire in general. Secondly, by examining the judicial treatment of these new types of crimes by the imperial government, we emphasize the fact that the absence of any particular law dealing explicitly with hanjian and a general use of other laws by analogy made this phenomenon largely“invisible”from both legislative and judicial points of view. Thirdly, however, because of their political nature, crimes attributed to hanjian were punished by substatutes laws often involving special procedures, so that these particular cases were not classified within the ordinary criminal categories. The last part of this paper focuses on the application of the so-called“Substatutes on Rootless Rascals”(guanggun li 光棍例) into the hanjian cases. Created by Qing lawmakers to address a growing number of social problems during the 17th and 18th centuries, this set of substatutes had a metaphoric function which made them susceptible to be implemented in an imprecise way, and applied to various new“indecisive”crimes. These crimes were often responses to a dysfunctional policy. Similarities between the judicial figure of the hanjian and that of the guanggun are therefore examined in a discussion of this interplay of crime and bad governance.
關鍵詞
漢奸、改土歸流、特刑法、光棍例適用
hanjian (Han lawbreakers)、gaituguiliu (administrative reform of Yongzheng)、statute、substitute、special criminal law、Substatutes on Rootless Rascals