《折狱龟鉴》中的断狱风格研究
发布时间：2018-09-06 14:40
【摘要】：本文以郑克著的《折狱龟鉴》为中心,展现了古代司法官如何侦查和裁判案件。虽然不同朝代的司法官会因为所处时代的政治文化背景不同而可能导致一些个案处理方法不同,但是从整体上看却也有共通之处。本文力图从这些共通点出发中使我们能够对古代司法官断狱时运用的侦查手段和审判方法有一个全面的了解,发掘其中的司法审判理念和断狱精神,可以为我们今天的司法实践提供了参考经验,有利于中国现代法制制度和观念的发展。 在分析和归纳了《折狱龟鉴》中的案例后,我们对古代司法官的断狱风格有了大致的了解,即察狱之术、裁判之道和断狱精神。首先是察狱之术,即古代司法官在侦查案件过程中运用他们的智慧灵活运用各种侦查方法和侦查谋略。在侦查方法类型方面,将从现代侦查学中侦查措施是否公开使用或者运用的分类标准对古代侦查方法进行一些梳理和分析,主要包括公开的侦查方法和秘密的侦查方面；在侦查谋略方面,谲术作为一种谋略在刑事科学技术十分落后的古代可谓是意义重大。《折狱龟鉴》中不仅充分注重谲术的运用,并且还提出在使用谲术时所应该遵循的一些原则,主要包括正谲并用、谲术运用的保密性两方面。古代司法官在侦查案件时多是将多种侦查方法和侦查谋略结合,混合使用以将二者的功能发挥至最大。其次是裁判之道,即古代司法官断狱对成文法的适用。中国自古就是具有成文法传统的国家,古代司法官在断狱援法时不仅能深刻理解法律的内在涵义,并且能够分析不同案例的适用条件以及在法律适用的细节对整个案件的影响。古代司法官对成文法的适用自有其内在逻辑,做到依法而断和比附类推相结合,参详法意同时不做到擅断,既遵循先例但又严格区分个案的适用条件,反对深文峻法,牵强附会的适用法律,在情理和法理之间,能正确处理二者关系。再次是断狱精神即主以严明,佐以矜谨。严明和矜谨作为古代司法官忠于的断狱精神贯穿始终,即使是惩治奸匿、盗贼等也要“主以严明,佐以矜谨”。古代司法官秉持的严明并不是把苛暴当做严,把刻深当做严,而是要遵循法理,深察人情,并在为官态度上要做到勤勉尽心；古代司法官所秉持的矜谨乃是矜恤弱者,明谨慎审,断狱审案不致酷滥。
[Abstract]:This paper focuses on Zheng Ke's Breaking Tortoise and shows how ancient magistrates investigated and adjudicated cases. Although the law enforcement judges of different dynasties may lead to different ways of handling cases because of the different political and cultural backgrounds of their times, there are some common points on the whole. From these common points, this paper tries to enable us to have a comprehensive understanding of the investigative techniques and methods used by the ancient magistrates when they break the prison, and to explore the concept of judicial trial and the spirit of the jail-breaking. It can provide reference experience for our judicial practice today and benefit the development of Chinese modern legal system and concept. After analyzing and summing up the cases in the Tortoise of Breaking Prisons, we have a general understanding of the style of the ancient magistrates, that is, the observation of prison, the way of judgment and the spirit of breaking prison. The first is the technique of investigating the prison, that is, the ancient magistrates used their wisdom to use various methods and tactics of investigation in the process of investigating cases. In the investigation method type, from the modern investigation science investigation measure whether to use openly or to use the classification standard to carry on some combing and the analysis to the ancient investigation method, mainly includes the open investigation method and the secret investigation aspect; In the aspect of investigation and strategy, treachery, as a kind of strategy, is of great significance in the ancient times when criminal science and technology are very backward. Some principles which should be followed in the use of treachery are also put forward, including two aspects: the positive use of treachery and the confidentiality of the use of treachery. In the investigation of cases, the ancient magistrates combined various investigative methods with investigative strategies, and used them to maximize their functions. The second is the judgment, that is, the application of the statute law by the ancient magistrates. Since ancient times, China is a country with the tradition of statutory law. In the law of jail-breaking aid, the ancient magistrates can not only deeply understand the inherent meaning of the law, but also analyze the application conditions of different cases and the influence of the details of the application of the law on the whole case. In ancient times, the application of statutory law had its own internal logic, which combined the law with analogy, the meaning of reference to the law was not arbitrary at the same time. It not only followed the precedent but also strictly distinguished the applicable conditions of the case, and opposed the profound and profound law. The applicable law can correctly deal with the relationship between reason and law. Again, the spirit of breaking the prison, that is, the Lord with strict, accompanied by the right. Yan Ming and Jin, as an ancient law enforcement judge, were loyal to the spirit of breaking the prison throughout the whole time, even when punishing and hiding the traitors, thieves and so on should "be strict with the Lord, and with dignity with the help of the Lord". The strictness of the ancient magistrates was not to be strict with violence, but to abide by the principles of law, to observe human feelings, and to be diligent in the attitude of officials; and the pride of ancient magistrates was to be compassionate to the weak. In a prudent trial, the trial of a prison judge is not incorruptible.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D929
本文编号：2226667
[Abstract]:This paper focuses on Zheng Ke's Breaking Tortoise and shows how ancient magistrates investigated and adjudicated cases. Although the law enforcement judges of different dynasties may lead to different ways of handling cases because of the different political and cultural backgrounds of their times, there are some common points on the whole. From these common points, this paper tries to enable us to have a comprehensive understanding of the investigative techniques and methods used by the ancient magistrates when they break the prison, and to explore the concept of judicial trial and the spirit of the jail-breaking. It can provide reference experience for our judicial practice today and benefit the development of Chinese modern legal system and concept. After analyzing and summing up the cases in the Tortoise of Breaking Prisons, we have a general understanding of the style of the ancient magistrates, that is, the observation of prison, the way of judgment and the spirit of breaking prison. The first is the technique of investigating the prison, that is, the ancient magistrates used their wisdom to use various methods and tactics of investigation in the process of investigating cases. In the investigation method type, from the modern investigation science investigation measure whether to use openly or to use the classification standard to carry on some combing and the analysis to the ancient investigation method, mainly includes the open investigation method and the secret investigation aspect; In the aspect of investigation and strategy, treachery, as a kind of strategy, is of great significance in the ancient times when criminal science and technology are very backward. Some principles which should be followed in the use of treachery are also put forward, including two aspects: the positive use of treachery and the confidentiality of the use of treachery. In the investigation of cases, the ancient magistrates combined various investigative methods with investigative strategies, and used them to maximize their functions. The second is the judgment, that is, the application of the statute law by the ancient magistrates. Since ancient times, China is a country with the tradition of statutory law. In the law of jail-breaking aid, the ancient magistrates can not only deeply understand the inherent meaning of the law, but also analyze the application conditions of different cases and the influence of the details of the application of the law on the whole case. In ancient times, the application of statutory law had its own internal logic, which combined the law with analogy, the meaning of reference to the law was not arbitrary at the same time. It not only followed the precedent but also strictly distinguished the applicable conditions of the case, and opposed the profound and profound law. The applicable law can correctly deal with the relationship between reason and law. Again, the spirit of breaking the prison, that is, the Lord with strict, accompanied by the right. Yan Ming and Jin, as an ancient law enforcement judge, were loyal to the spirit of breaking the prison throughout the whole time, even when punishing and hiding the traitors, thieves and so on should "be strict with the Lord, and with dignity with the help of the Lord". The strictness of the ancient magistrates was not to be strict with violence, but to abide by the principles of law, to observe human feelings, and to be diligent in the attitude of officials; and the pride of ancient magistrates was to be compassionate to the weak. In a prudent trial, the trial of a prison judge is not incorruptible.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D929
【参考文献】
相关期刊论文 前10条
1 张正印;;事实的敞开:情理法判案模式的合法性构造[J];东方法学;2008年03期
2 何家弘;秘密侦查立法之我见[J];法学杂志;2004年06期
3 马洪根;;中国古代侦查谋略探源[J];中国人民公安大学学报(社会科学版);2008年05期
4 魏文超;华志强;;论中国传统法中的确定性——以拉德布鲁赫语境下的宋代司法分析为例[J];安徽大学法律评论;2012年02期
5 黄道诚;;宋代侦查中的现场勘验初探[J];河北大学学报(哲学社会科学版);2009年03期
6 霍存福;中国传统法文化的文化性状与文化追寻──情理法的发生、发展及其命运[J];法制与社会发展;2001年03期
7 张全民;郑克法律思想初探[J];法制与社会发展;2004年06期
8 贺卫方;中国古代司法的三大传统及其对当代的影响[J];河南省政法管理干部学院学报;2005年03期
9 张伟仁;;中国传统的司法和法学[J];现代法学;2006年05期
10 高鸿钧;;无话可说与有话可说之间——评张伟仁先生的《中国传统的司法和法学》[J];政法论坛;2006年05期
，本文编号：2226667
本文链接：https://www.wllwen.com/falvlunwen/fashilw/2226667.html
