民国司法院:近代最高司法机关的新范式

The Judicial Yuan of the Republic of China:A New Paradigm for a Supreme Judicial Organization in Pre-1949 History

从清末司法改革到1947年颁布《中华民国宪法》和修正《司法院组织法》,经过几十年的演变,近代中国形成了特有的最高司法机关模式——司法院。在司法行政方面,大理院自始便拥有非常独立的院务自主权,司法院承袭了这一权力,并加以扩充;最高审判权与司法行政权是否合一的问题是民国制宪时反复争论的问题之一,但事实上司法院长并不直接从事审判工作,所以最高审判权与司法行政权从未真正合一。司法院继承了大理院统一解释法令权,并将其规范控制权扩展到宪法解释领域。民初大理院、平政院(肃政厅)分立,开日后司法院内最高法院、行政法院和公务员惩戒委员会并行的先河。可以说,在《中华民国宪法》颁布之前,司法院体制已经渐趋成熟,甚至宪法本身也无法另起炉灶,根本改变既有的中央司法体系。如果说司法院本身的制度设计尚有可取之处的话,整个南京国民政府时期实际的司法运作则是腐败盛行。

The Judicial Yuan,a model of supreme judicial organization peculiar to China's recent history,was the outcome of several decades of evolution from the legal reforms of the late Qing Dynasty to the Constitution of the Republic of China(ROC)in 1947.In terms of judicial autonomy,The Da Li Yuan(the supreme court)was very independent in judicial administration from the outset.Its powers were inherited and expanded by the Judicial Yuan.Whether the supreme power to try casesadjudicate and the power of judicial administration should be united was a matter of repeated debate when the Constitution of the ROC was being formulated.However,as in practice the President of the Judicial Yuan was never directly involved in any trial,these two functions were never truly united.The Judicial Yuan also kept the Da Li Yuan's power to provide a unified interpretation of laws and directives and expanded its powers of standardization and control to constitutional interpretation.In the early Republican period,the Da Li Yuan was separated from the Ping Zheng Yuan or administrative court(the Su Zheng Ting,or bureau of the ombudsman),which later developed into the Supreme Court on civil and criminal cases,Administrative Court and Civil Servants' Disciplinary Commission on the Disciplinary Sanctions of Functionaries within the Judicial Yuan.It is safe to conclude that the Judicial Yuan was fairly well-developed in institutional terms even before the promulgation of the Constitution of the ROC;even the Constitution itself couldn't start afresh and change the existing judicial system.However,if the Judicial Yuan had some valuable elements in terms of institutional design,judicial practice was hopelessly corrupted during the Nanjing period of Republic rule.