判例在中国传统法中的功能

The Functions of Case in Traditional Chinese Law

中国传统法中的判例是指经过特殊程序认定,具有普遍拘束力的司法判决。春秋战国以前,中国的法律以判例为主要存在形式。春秋战国以后,形成了以法典为主,判例为辅,多种形式并存的法律体系并长期保持。法典化时代的判例立足于法典,发挥了对法典在立法范围扩展、立法技术补充、规则效力强化等方面的功能。在判例创制规則和复现规則的关系上,中国古代始终坚持复现为主的原則,在维护法律形式內部稳定结构的同时,维护规则供应的相对稳定。

In traditional Chinese law, cases are those judicial decisions with general effect established by special procedures. Before Spring Autumn and Wartime period, the main form of Chinese law is the case. After that period, Chinese legal system had gradually accommodated many forms, with codes as the main part and cases as secondary part. Such a system maintained for long time. Those cases, based on the codes, functioned to broaden the scope of legislation, supplement the legislative technology and strength the effectiveness of rules. As to the relationship between the establishment rule and the recurring rule of cases, ancient Chinese law persisted in the recurring rule so that it could maintain a relatively steady supply of rules while keeping an inner steady structure of legal forms.