Abstract
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).
Keywords
accomplice, offenses of homicide or causing injury, three bonds (san gang), Xing’an huilan (Conspectus of Penal Ccases)
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