论清代的"呈请发遣"

清代的“呈请发遣”是指祖父母、父母通过鸣官的方式呈请官府惩戒违犯教令的子孙,官府听从家长意愿,通过国家强制力将不肖子孙远流离乡。“呈请发遣”以家长的鸣官亲告为前提,国家既尊重家长对不肖逆子的惩戒权,又给予他们鸣官的送惩权。这一手段使族内家长的自主惩戒权和国家权威相结合,从而达到相得益彰的效果。清代的“呈请发遣”律例在制定和增改的过程中,虽力求根据儒家文化所提倡的伦理思想进行灵活调整,但其仅依据一些违礼琐事便听任家长呈请惩戒的做法,使很多人遭受发遣充军之苦,从而使“呈请发遣”这一体现儒化法律的良法美意成了家长制的虐民帮凶。

The Request for Banishment in Qing Dynasty

The request for banishment in Qing dynasty is that the grandparents or parents ask feudal officials to discipline their unfilial sons by litigation in themselves.The parents must litigate by themselves as a precondition of the request for banishment.The empire not only respects disciplinal right of family patriarch,but also imparts the right of litigation to them.The means combines the free disciplinal right of family patriarch with the authority of the empire to form a perfect effect.However,although lawgiver endeavored to have a flexible adjustment according to Confucian ethical thinking in the course of form and revision of the laws and regulations of the request for banishment,the modus operandi that feudal officials leave the patriarch to litigate at random make many people suffer the torture of military exile,and many of them were compelled to escape.Consequently,the request for banishment that was made on the basis of Confucian ethical thinking gradually became the tool of tyranny.