Civil procedure in the Qing Magistrate's Court : illustrated with reference to land and debt disputes (1644-1911)
This study, drawing mainly on the Qing law and Baodi case records during nineteenth century, supplemented by reference to collections of magistrate's decisions and handbooks, aims to describe the civil procedure of the last dynasty of imperial China, the Qing in terms of the performance of the magistrate's court in solving land and debt cases. It argues that the establishment of the relevant laws on both procedural and substantive issues was systemized in the Qing logic in the sense that magistrates were enabled to solve land and debt disputes and petitioners were enabled to seek help from legal institutions. In some aspects, the law was either drafted too widely, such as in the case of physical injury, or too ideally, such as in the case of false accusation. As a result allegations of physical injury and untrue accusation were very often found in land and debt cases. As for solving land and debt cases, the magistrate in the first place followed the letter of the law when there was an applicable statutory provision. However, the magistrates' purpose in hearing a case was to distinguish right and wrong. (fenbian quzhi) and deliver justice (pingyun) to the parties; so the facts (qing) and the law (fa) were both completely considered (qing fa liang jin). When there was a gulf between the law and the case, which was sometimes unavoidable, the real meaning or principle of the law was applied. In this sense, the magistrate enjoyed a large discretion by taking into account the specific circumstances before making a decision (zhun qing zhuo li). Zhun qing zhuo li expresses a principle governing the application of the law. It is not a flexible tool allowing the magistrate to decide as he wished. In most circumstances the letter of the law was not lacking. Decisions turning on zhun qing zhuo li were very rare. In any event several limitations were established on the magistrates' discretion.