頁籤選單縮合
| 題 名 | 「淡新檔案」研究成果之一範例--戴著《清代臺灣之鄉治》初讀、選錄及書後=A Remarkable Example of Research on the "Dan-Xin Archives": An Initial Reading of Tai Yan-Hui's "Rural Government in Taiwan during the Qing Dynasty" with Select Excerpts and Postscript |
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| 作 者 | 黃靜嘉; | 書刊名 | 法制史研究 |
| 卷 期 | 8 民94.12 |
| 頁 次 | 頁215-262 |
| 分類號 | 733 |
| 關鍵詞 | 清代; 臺灣鄉治; 漢人聚落; 街庄; 隘; 屯; 鄉職; 街庄為自制體; 縣; 廳; 衙門; 一業二主; 大租戶; 小租戶; 淡新檔案; 幕友; 家丁; 史差; 衙役; Qing Dynasty; Taiwan rural government; Jie and Zhuang; Ai; Tun; Various positions comprising the rural autonomous entities; Mu-yu; Jia ding; Li-chai; Clerk; Da Zu Hu; Xiao Zu Hu; |
| 語 文 | 中文(Chinese) |
| 中文摘要 | 本文的撰寫原意，僅係對已故戴炎輝教授經典巨著《清代台灣之鄉治》作一書評，愧承《法制史研究》編者厚意，邀約本文列為「研究與討論」。余意以為，戴著本書可謂科際整合之典範，篳路藍縷，戴氏實有啟迪之功。本文徵引戴氏相關論述，論證此書其實內含以法律社會學及比較法學史重建清代台灣鄉治的一套論述體系。戴著所稱之「鄉」，是指縣(廳)以下的漢人聚落如村、里、保、澳、鄉、街、庄、聯庄等；同時，戴著還一併論及清代台灣鄉制之「變則」，此即具有防衛功能之「隘」與「屯」。戴氏認為除里、保、鄉及澳，乃官為征賦及治安目的所劃分，特別為差役管轄而設者外，街、庄、鄉係自然形成的地方自治團體。本書對各種鄉職之舉充、諭帖之頒給（官廳之承認）及各鄉職之功能，均有詳盡之論述。戴著超邁前人之處，在於充份運用大量的「淡新檔案」司法文書。如分析鄉職的舉充及功能時，戴氏即用數十個「淡新檔案」案例為佐證。戴氏經常?引「淡新檔案」實例做分析，亦使本書成為研究「淡新檔案」著有成效的絕佳範例。不僅如此，當論及鄉制之功能時，戴氏進一步採用了現代學術之觀念，將鄉治功能區分為「自治的」與「官治的」兩類（猶今日自治之「省」或「縣」，兩者均兼辦其上級之官署即省或中央委辦之事項），並逐項列舉其內容。戴著並論及「鄉」制下的社會組織，強調村、里、堡、庄等鄉治組織以及宗族(族長亦為戴氏列為鄉職之一種)都可介入輕微的刑案及民事案件，因而具有司法性質之權力。就此，戴氏曾舉：「清代『庄』、『里』、『堡』之裁判及處罰為例，指出此種具有司法性質之權力「並無成文法的根據」，且「民案」及輕微刑案縱告到官，官則常飭兩造就族親、公親或庄職等人調處；而民亦常在未告官之前，投明此人為之調處。此一因官憚煩，民不願傷和氣；二因涉訟既化費且費力。」戴著討論清代地方官制時，也對吏差角色著墨甚多，他?引宋代葉適「官無封建而吏有封建」之一語，申論清代台灣吏差甚至成為可供繼承及買賣之標的，且吏差得以盤據衙門需索陋規並成為其時之痼疾。就此，戴著亦引據多條「淡新檔案」文書為實証。綜合而論，無論在觀點或分析上，本書對清代臺灣鄉治的看法，實與前人以中文或外文討論清代大陸地區之相關著作，頗有可供兩相呼應或以此證彼之處。此緣臺灣之漢人聚落，原由閩粵為主之移民所組成，這些移民也把一些大陸內地鄉制及相關組織文化帶至臺灣。此更可證明清代台灣鄉制之歷史與中國傳統法制之歷史，原屬系出同脈且難能加以分割。本書也顯示了戴氏比較法史學之功力。如於論述清代臺灣地權史上「業」的性質及「一業兩主」等問題時，戴氏即曾引用日耳曼法及羅馬法以資比較。就此，使吾人想起另一東京大學出身之著名法制學者仁井田陞，戴氏與仁井田兩人均曾從受業於東京大學中國法制史權威中田薰教授，兩人沐受其薰陶，在一定意義上說，兩位學者其實都繼承了中田氏比較法史學的宗風。 |
| 英文摘要 | The author wrote this article originally as a mere book review of the monumental classic "The Rural Government of Taiwan during the Qing Dynasty," (the"Book") written by the late Professor Yan-Hui Tai. The editor of "Legal History Review" then graciously included it in the section titled "Commentary". As the Book is said to have done a methodologically remarkable job integrating different academic disciplines, it is certain to inspire further studies along the same line. This article references relevant discussions and analyses in the Book. A review of the Book effectively includes an analysis of a methodology for reconstructing the rural government of Taiwan during the Qing Dynasty from the perspectives of legal sociology and comparative legal history. The rural areas as referred to in the Book are congregations of CUN, LI, BAO, JIE, XIANG, ZHUANG and LIAN ZHUANG of Han people (who had emigrated to Taiwan from the mainland provinces of China), under the XIAN (or TING). These rural areas also include the "AI‥ and "TUN" which possessed self-defense capabilities and which were derivatives of the ordinary rural areas. Professor Tai was of the view that LI, BAO, XIANG and AU were created by the Ya-Man for the purposes of collecting taxes and maintaining peace and order, while ZHUANG and LIAN ZHUANG were autonomous entities that developed naturally. The Book provides detailed descriptions and analyses of the nominations, granting of written appointments (recognition by Ya-Man of XIAN and TING) and functions of various positions comprising the rural autonomous entities. The Book exceeds its predecessors in that it references a large numbers of judicial files called Dan Xin Archives (the "DX Archives"). In the case of nomination of rural positions, Professor Dai cited tens of cases from the DX Archives in support of his analysis. Containing frequent references to the DX Archives by Professor Dai as the basis for his analysis, the Book has become remarkable example of successful use of these valuable documents. The Book defines the congregations of JIE, ZHUANG and LIAN ZHUANG as autonomous entities. However, these autonomous entities also perform functions delegated by the imperial government agencies of XIAN (or TING) and their superiors of the provincial level agencies (with semblance to the modern day SHENG (province) or XIAN (county), which also handle matters delegated by its superior office of the SHENG (province) or ZHONG YANG (central government). Professor Tai noted that the rural autonomous entities or the clan heads had powers of a judicial nature as regards minor criminal and civil matters. Specifically Professor Tai noted that when a civil matter or minor criminal matter was brought before the magistrate, the magistrate would frequently order the parties to approach their clan elders, publicly respected persons and persons holding positions of the autonomous entities for mediation. People would also frequently approach such personnel for mediation before bringing the matter before the magistrate. As Professor Tai appropriately pointed out, this was because the imperial official could not be bothered, people did not wish to disrupt the civic harmonic order, and because litigation cost more money and energy. With regard to the YA-MEN of the XIAN or TING, Professor Dai dedicated a significant number of pages to the roles of the clerk and runners of the YA-MEN. Professor Dai quoted the saying of Ye Shi of the Sung Dynasty, "The positions of the imperial officials are not inheritable but those of their clerks are." It was inferred from that saying that such clerkship was an object for sale and succession during the Qing Dynasty and that the YA-MEN was dominated by the clerks or the runners of the YA-MEN who engaged in large-scale corrupt practices. On the whole, the viewpoints presented in the Book mirror or authenticate those conveyed in previous publications by mainland Chinese or foreign scholars on the rural governments of China during the Qing Dynasty. This is attributable to the fact that the Han congregations on Taiwan were comprised primarily of immigrants from the mainland provinces of Fujian and Guangdong. These immigrants brought with them the rural system and organizational culture of the mainland. The legal history of rural Taiwan during the Qing Dynasty and that of other mainland Chinese provinces share the same root and are inseparable. The scholarship demonstrated by Professor Tai in dealing with the nature of the ownership of land (YE) in Taiwan from a comparative legal history prospective reminds us of another famous legal historian NiidaNobulu, who is also a graduate of Tokyo University. Both Professor Dai and Niida Nobulu studied under Professor Nakada Kaoro, who was an authority on Chinese legal history at Tokyo University, and were greatly influenced by him. In a certain sense, Professor Tai and Mr. Nobulu both adopted Professor Nakada's scholastic style in the research of comparative legal history. |
本系統中英文摘要資訊取自各篇刊載內容。