摘要
明清時期的抱告，也稱代告，學者多追溯至「命夫命婦，不躬 坐獄訟」，稱之為中國古代的「訴訟代理」制度。適用抱告的主體，包括生監、老幼、廢疾、婦女等，在國家律典和地方「狀式條例」中均有規定。考察冕寧檔案中存在的大量婦女涉訟現象時發現，在清代冕寧的司法實踐中既有對抱告較為普遍的遵守，同時也存在大量與律例不合卻被准予受理的情形。這些情形包括為數眾多的婦女無抱告、抱告不合、婦女與成年男子做共同原告等等，並嘗試對這些現象進行初步解讀。清朝的司法實踐，在不同的時間和空間，均存在巨大差異。通過考察冕寧檔案，並結合清代律例及比對其他地區清代檔案，文章認為至少在清代冕寧地區，相比較於對婦女訴訟資格的形式性審查，基層司法實踐更關注個案的實體問題。 而設立抱告制度的真實立法意圖，應該是更側重於防範婦女訴訟權利的濫用，即防止婦女誣告。
The “Baogao” system of the Ming and Qing dynasty was also known as representative action system, which could be traced back to the period of “ancient China’s regime of the nobility’s privilege of not going to the court personally in a trial ”. The “Baogao” system was named by many scholars as China's ancient “litigation” system. The subject of the litigation included students, the young and the old, the disabled, women, which was stipulated in both the national law and the local condescendence rules. Making a study of the numerous women litigation cases in Mianning Archives, the writer finds that some cases complied with the “Baogao” system at the time, but some others were not in accordance with the system. These cases included litigation without a Baogao, the Baogao was not consistent with the system, a woman and a man were co-plaintiff, and so on. The writer intends to have a fundamental interpretation of those cases. There existed huge differences in time and space in the judicial practice of the Qing Dynasty. The writer believes that at least in Mianning prefecture of the Qing Dynasty, the basic judicial practice was more concerned about the entity of the case than the procedural review of the women who had the qualification of taking lawful action.
關鍵詞
冕寧檔案、婦女訴訟、抱告、法律後果
Mianning Archives; women litigation; representative action; legal consequences
