汉律中的县道官“断狱”权探析

Power of the Officials in Counties or Daos to Adjudicate Criminal Cases:A Perspective of the Han Code

县、道是汉代地方郡县二级制下平级的基础政区,县道官是县、道的行政司法长官,有广泛的刑事司法权,"断狱"权是县道官刑事司法权的核心部份。县道官"令、长、丞"有"断狱"权,他们对"死罪"、"过失杀"、"戏而杀人"案件有初审权,对非死罪案件有终审权;县道官"断狱"的法律程序包括"传《爰书》"、"讯鞫"、"论当"等部分;县道官"擅移狱"、"鞠狱故纵"、"不直"、"弗穷审"须承担刑事责任。汉代县道官"断狱"权的法律规定呈现出权责分明的总体特点。

The two-level （prefecture and county） administrative division system in the Han Dynasty consisted of counties and Daos （ in minority nationality regions）. Officials in countries or Daos meant those administrative and judicial officials that enjoyed extensive power of criminal justice, of which to adjudicate criminal cases was the most important part. Officials in counties or Daos such as ＂Ling, Zhang, Cheng＂ were authorized to decide criminal cases. As to death crime, negligent killing, and accidental killing while playing games, they had original jurisdiction; as to cases other than death crime, they had final say. The criminal procedures were then followed including pleadings and submission of documentary evidence, court investigation, conviction and sentence. Where the officials illicitly refused to exercise jurisdiction, knowingly let off the criminal, purposely made wrong judgment, or did not thoroughly investigate the case, they were obliged to bear criminal liability. In general, legal provisions of the power to try criminal cases exercised by the officials in counties or Daos in the Han Dynasty were characterized by a clear division of power and responsibility.