唐代诉讼制度研究

发布时间：2018-05-15 22:15

本文选题：唐代诉讼 + 出土文献　；参考：《陕西师范大学》2009年博士论文

【摘要】： 本文是从历史文献角度对唐代诉讼制度进行的专题研究,全文参照现代法学逻辑架构,依据诉讼程序进展的不同阶段,共分设十章：第一、二、三章围绕起诉制度,讨论起诉方式、拘捕与强制措施、保释制度等问题。研究结果表明：唐代私人控告是启动各类诉讼程序的基本途径,书面呈诉的法律规定经过长期实践,已为普通民众所认可,并逐渐形成持状论事的诉讼习惯。法司立案的标志则是长官在诉状上的受案批示,批示内容又因诉讼请求和案件情况的差异有所不同。司法实践中,缉捕事务由基层法吏承办,官府有权对缉捕嫌犯和收禁囚徒采取械系、绑缚等强制措施,官府还可褫夺人犯巾带,收禁关押,以示困辱。缉捕官吏地位卑下,时常因缉捕未果、缉捕误期、错缉人犯等原因遭受处罚。此外,村坊乡里等基层组织广泛参与诉讼活动,协助官府接受举报和报案、拘传被告和证人、以及缉拿义务人。唐人笔记小说中冥司追摄、械系人犯的相关描述,多据唐代诉讼固定程式演绎而成。唐律从恤刑亲伦等人道观念出发,规定罪囚拷满不承、临产,以及居丧者,可予以保释。由于各级司法机关普遍存在滞狱问题,遂使大量系囚难以通过保释得到疏决。第四、五、六三章研究审判活动,探究唐代庭审程序、同职连署审判以及证据制度。唐人小说中关于阴司法庭设置格局的描述本于唐代州、县衙门结构,六曹合署办公,法官据案庭审的场景经由文人移录,遂成为阴阳两界通行的法庭固定格局。考察冥讼故事和出土案卷可知,唐代刑事案件庭审程序大致包括原告陈诉、吏卒传唤、法官讯问,被告答辩、两造对质、检状勘察等具体环节。各级法司官吏审判案件过程中,分工负责,连署文案,并承担连带法律责任。分析出土文献可知,同职连署审判制度在唐前期得到了相当程度的贯彻。中唐以后,为了适应诉讼程序趋于简明高效的发展趋势,连署审判制度发生了明显变化,其中最主要的表现即为通判官副署程序的略省。唐人冥讼故事多无通判官押署,或正与此时连署审判制度改革相关。唐代获得证据的手段与前代比较未见长足进步,从获得证据的途径而言,唐代法官断案主要坚持“以五声听狱讼”的传统审判模式,强调庭审之时法官通过讯问当事人获得相关信息。受当时科技水平的限制,多数案件证据的获得仍主要经验积累和传统手段进行,而对于取证方法的理论总结亦显不足。为获得口供,唐律允许对犯人进行刑讯。非法拷掠并非唐代特定历史时期的个别现象,而是实践中长期存在的司法痼疾。第七、八两章以诉讼审级为中心,研究唐代诉讼级别管辖、代诉与直诉,以及中晚唐司法权诸司分掌现象。唐代诉讼复审级分上诉复审和奏报复审两类,前者是以逐级上诉申理为线索,是由诉事词状启动的申诉制度；后者是以法司申报复核为依据,是由法定职责启动的复核程序。二者在受案机关和审级层次方面存在一定交叉重合关系,却又具有本质差异。唐代亲属代诉现象十分普遍,并成为平反冤案和监督司法的重要方式。受儒家宗法亲伦观念的影响下,亲属代诉作为义举时常受到时人推崇和舆论褒奖。唐律明确认定的直诉方式有邀车驾、挝登闻鼓、上表、立肺石、投匦等五种方式,现有自诉案例中,尤其以挝鼓诉冤者居多。唐代自诉案件中,诉事人自残耳目的现象十分常见,并可能对案件进程和审判结果产生一定影响。御史台受状问案制度的确立,使得唐代诉讼审级发生微妙变化,台司与尚书省在事实上成为并列的上诉机关,诣台诉讼成为诉事人进京告诉的首选途径。唐代军司审判管辖权的获得与安史乱后禁军势力的不断滋长直接相关,普通司法机关的管辖权力受到严重侵害,军司恣意妄为,干涉州县司法机关正常审判,普通司法机关在与军司争夺诉讼权力的较量中常居守势。唐代“三司受事”是常设上诉机构,“三司推事”是接受差遣推鞠大案的临时组织。前者主要作为常设的最高上诉机构存在,必要时可以奉诏理问要案；后者自始至终是接受差遣审断重大案件的临时机构,终唐之世并未有承担上诉审职能的明确授权。第九、十两章探讨审判监督,重点考释唐代司法监察和死刑覆奏制度的发展和运行。研究结果表明：唐代尤其重视京畿附近的司法监察,中书门下、御史台,及京城百司是参与虑囚疏狱的重要力量。唐代设置中央职官充使虑囚和地方分道遣使虑囚两大系统,按覆地方刑狱。前者又有常设型与临时型之分,常设型使职出自刑部和御史台,包括刑部覆囚使和虑囚御史；而临时型使职则多由中央臣僚充任。分道遣使虑囚系统则主要指派驻各地之巡察、按察、观察等地方监察使臣的虑囚活动。按察、观察等虑囚使臣多因时差遣,分道疏狱。“诸狱禁囚,五日一虑”乃各级司法机关疏决系囚之常制,州府长吏一般通过查阅案卷和录问囚徒两种途径监督地方司法审判。唐代地方州县法吏除进行常规定期虑囚以外,还需按照中央临时发布的诏敕,对辖内系囚进行即时处置。唐初百余年间,帝王亲虑、遣使虑问和有司自虑等司法监督手段经常交叉并行,开元天宝以后,帝王亲囚的记载开始逐渐减少,取而代之的是频繁的遣使虑囚和有司自录。至中晚唐,有司自录发展成为最为常见的司法监察方式。死刑覆奏是唐代诉讼法制中彰显慎刑思想的一项重要制度,唐代司法实践中形成了中书门下参与重大案件审判和死刑详覆的惯例,死刑案件须经刑部覆奏、中书门下详覆,方可奏报皇帝裁决。中唐以后,贯彻死刑覆奏制度的最大干扰正来自帝王制敕,死刑覆奏制度几经兴废,扭曲运行,正可作为封建君主恣意变乱法度的典型例证。
[Abstract]:This article is a special study on the litigation system of the Tang Dynasty from the historical literature. The full text refers to the logical framework of modern law, and ten chapters are divided according to the different stages of the progress of the procedure.
The first, second, the three chapter focuses on the prosecution system, discusses the way of prosecution, the arrest and compulsory measures, and the bail system. The results show that the private accusation in the Tang Dynasty is the basic way to start all kinds of litigation procedures. The legal provisions of the written complaint have been accepted by the ordinary people after a long period of practice, and gradually form the habit of litigation. The symbol of the law case is marked by the approval of the chief executive on the pleadings. The approval of the case is different because of the difference between the litigation request and the case. In judicial practice, the arrest is carried out by the grass-roots law officials. The government has the right to take arms and bind, bind and bind the suspects and prisoners. In order to show the disgrace and disgrace, the arrest of officials is low, often due to the arrest of the arrest, arrest and misuse of the people, and other reasons for the punishment. In addition, the village and village and other grass-roots organizations are widely involved in litigation activities to assist the government to accept reports and reports, and to arrest the defendants and witnesses, as well as the arrest of the obligor. As a result, the Tang law, based on the humanitarian concept of the Tang Dynasty, set out from the humanitarian concept of the pro - Lun of the Tang Dynasty, and stipulates that the prisoners can be released on bail because of their disengagement, labor and bereavement. As the judicial organs at all levels generally have the problem of prison detention, a large number of prisoners are difficult to be released on bail.
The fourth, fifth, the 63 chapter studies the trial activities, explore the procedure of the court trial, the trial of the same office and the evidence system in the Tang Dynasty. The description of the setting pattern of the court court in the Tang people's novels is based on the Tang Dynasty, the county yamen structure, the six office of the Cao department, the scene of the judge's case trial, which became the tribunal of the two circles in Yin and Yang. It is known that the proceedings of the criminal cases and unearthed files show that the procedure of the court trial of the Tang Dynasty includes the plaintiff's prosecution, the summons of the officials, the judge's interrogation, the defendant's reply, the two contests, the inspection, and so on. In the process of the judicial cases of the officials at all levels, the division of labor is responsible for the division of labor, the copywriting, and the joint and several legal responsibilities. The analysis of the unearthed documents can be seen The trial system of the same office was carried out in a considerable degree in the early Tang Dynasty. After the middle of the Tang Dynasty, in order to adapt to the concise and efficient development trend of the procedure, the trial system has changed obviously. The main manifestation is the brief province of the procedure of the Deputy Officer's deputy office. The means of obtaining evidence in the Tang Dynasty has not made considerable progress compared with the previous generation. From the way of obtaining evidence, the judge of the Tang Dynasty mainly insisted on the traditional trial mode of "listening to prison in five voices", emphasizing the judges' obtaining relevant information by interrogating the parties at the time of trial. The acquisition of the evidence of the case is still the accumulation of main experience and the traditional means, and the theoretical summary of the methods of obtaining evidence is also insufficient. In order to obtain the confession, the Tang law allows the prisoners to torture. The illegal torture is not a particular phenomenon in the specific historical period of the Tang Dynasty, but a chronic judicial chronic disease in practice.
The seventh, the 82 chapter, taking the lawsuit trial level as the center, studies the litigation level jurisdiction of the Tang Dynasty, the prosecution and the direct prosecution, and the judicial power of the middle and late Tang Dynasty. There are two categories of appeals retrial and memorial retrial in the Tang Dynasty. The former is the appeal system initiated by the lawsuit, and the latter is the vengeance of the law. On the basis of nuclear power, it is a review procedure initiated by legal duties. There are certain intersecting and overlapping relations between the two parties in the subject and the level of the trial level, but they have the essential difference. In the Tang Dynasty, the phenomenon of the relatives' prosecution is very common, and it has become an important way to counter the cases of injustice and to supervise the judiciary. Under the influence of the Confucian patriarchal patriarchal affinity, the relatives act as a representative. It is often admired and praised by the people. There are five ways of direct prosecution in the Tang Dynasty. In the case of the Tang Dynasty, there are very common phenomena in the case of the Tang Dynasty. The establishment of the censor system has made a subtle change in the litigation trial level in the Tang Dynasty, and the Taiwan and Shang Shu provinces are in fact a parallel appellate organ, and the attainments litigation becomes the first choice for the prosecution to enter Beijing. Relevant, the jurisdiction of the ordinary judicial organs is seriously infringed, the military division is unscrupulous, interferes with the normal trial of the state judicial organs, the ordinary judicial organs often live on the defensive in the contest with the military department for the litigation power. The "three divisions" in the Tang Dynasty is a permanent appellate body, and the "three divisions" is the temporary organization to accept the big case. As a permanent supreme appellate body, it is possible to ask for an important case when necessary; the latter is a temporary institution that has been accepted to judge major cases from beginning to end, and the end of Tang Dynasty does not have a clear authorization to undertake an appeals trial function.
The ninth, twelfth chapter discusses the judicial supervision, focusing on the development and operation of the judicial supervision and the death penalty overlay system in the Tang Dynasty. The results show that the Tang Dynasty especially paid attention to the judicial supervision near the capital, under the middle books, the imperial court and the capital of the Beijing city. The former has a permanent and temporary type. The former has the permanent type and the temporary type. The permanent type makes the office from the Ministry of punishment and the imperial court, including the prison department and the prisoner's history, while the temporary type makes the job more appointed by the central staff. The state government officials generally supervised the local judicial trial by two ways of checking the files and asking the prisoners to supervise the local judicial trial. According to the imperial edict issued by the central government, the prisoners should be treated immediately. In the past hundred years of the Tang Dynasty, the emperors' care, the consideration of the emperors, and the judicial supervision of the judicature were often crossed. After the Kaiyuan Tianbao, the records of the emperor's prisoners began to decrease gradually. It has become the most common way of judicial supervision. The death penalty overlay is an important system to highlight the thought of prudence in the legal system of the Tang Dynasty. In the judicial practice of the Tang Dynasty, the practice of taking part in the trial and death of the death penalty was formed under the judicial practice of the Tang Dynasty. After the middle of the Tang Dynasty, the greatest interference in the execution of the death penalty system came from the imperial edict, and the death penalty overlay system was a typical example of the arbitrariness of the feudal monarchs.

【学位授予单位】：陕西师范大学
【学位级别】：博士
【学位授予年份】：2009
【分类号】：D929;D925;K242

【引证文献】