抱告制度之渊源辨析

Discussion on Historical Origins of the Pao-kao System

学界普遍认为抱告制度(诉讼代理)起源于元代,而清代学者更是将抱告制度的历史渊源追溯到周礼。但经过考释,可以发现《周礼》中的制度与后世抱告制度并不相同,也没有实质上的传承关系,只是形式上有类似的地方而已。同时,抱告制度起源于元代的观点也值得商榷,在宋代已经出现了抱告制度之萌芽,这也体现了宋代司法转型这一历史趋势。

It is generally held in the academia that Pao-kao system （agent ad litem） came into being in Yuan Dynasty, and the scholars in Qing Dynasty even traced Pao-kao system back to the relevant system in Rituals of Zhou. Nevertheless, through research, we can find out that there exist great differences and no succession between the two systems. They are only similar in the form. What＇ s more, the opinion that Pao-kao system came into being in Yuan Dynasty is also open to question. In actual fact, Pao-kao system was in the bud in Song Dynasty, which reveals the historical trend of judicial restructuring in Song Dynasty.