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清代请托治理的措施与困境

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清代请托治理达到高峰期,但也面临着深层次困境.具体治理措施包括:一是完善立法,律例、谕旨相互补充,但也存在不够完善精细、立法与人情欠缺协调的不足;二是注重预防,朝廷、官员采用多种预防措施,这些认识和措施存在认可面较窄、过于倚重教化、不具有广泛性和普适性等局限;三是要求举发,但实践中很少有人举发,易被认为是悖情刻薄;四是强化惩处,皇帝、官员对很多案件能做到依律惩处,但也常因实行双重标准、出于政治考量而予以赦免,正直官员对请托拒大依小,普通民众则充分利用请托以谋私利.对请托的治理取得了一些成效,但从未被较全面、有效地杜绝,核心问题是情法认识存在矛盾:请托的属性是公义还是私利,请托治理的路径是德治还是法治.清代请托罪法的立法、执行历程,是一部情与法的博弈史、法在人情包围下的突围史,比较典型地体现了中国古代法治的理念与特点.
Measures and Challenges of Patronage Governance in the Qing Dynasty
Patronage governance reached its peak during the Qing Dynasty,yet faced significant underlying challenges.Specific governance measures included:firstly,the refinement of legislation,with laws,regulations,and imperial edicts complementing each other;however,there were shortcomings such as lack of precision and coordination with human emotions.Secondly,emphasis was placed on prevention by raising awareness that patronage is a violation of the rule of law and a self-serving behavior.The imperial court and officials adopted various preventive measures but faced limitations such as limited recognition and excessive reliance on education.Thirdly,reporting was required with penalties for failure to report patronage;however,few people reported due to fear of being considered unreasonable or harsh.Lastly,punishment was strengthened with instances where double standards were applied for political reasons.Patronage governance achieved some results but was never comprehensively or effectively eliminated.The core issue lies in the contradiction between emotions and the law:whether patronage is a public virtue or private interest,and whether the path to patronage governance is moral or legal.The legislative history of patron-client crimes in the Qing Dynasty represents a struggle between emotions and law—a breakthrough for law within an environment dominated by human emotions—and typifies traditional Chinese legal philosophy.

the Qing Dynastypatronagehuman emotionsrule of law

孙旭

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中国政法大学,北京 100088

清代 请托 人情 法治

2024

怀化学院学报
怀化学院

怀化学院学报

影响因子:0.24
ISSN:1671-9743
年,卷(期):2024.43(5)