汉代上请制度及其建立的理性基础

The Request Instructions System of Han Dynasty in Lawsuit and Its Rensonable Foundation

汉代的上请制度源于西周的"八议"之法。上请是指特定主体的行为触犯法律构成犯罪的,司法机关在履行特定上报批准程序后方能追究该特定行为主体刑事责任的制度。汉代上请适用的对象既有皇室宗亲、外戚、享有一定秩禄的官吏,也有老人、小孩,以及因亲情触犯法律的人;上请须遵循严格的程序,不准越级上请。上请制度在一定程度上体现了汉代的慎刑思想,同时也起到统一司法的作用。

The request instructions system of Han Dynasty in lawsuit came from the Eight Discusion regulation. The request instructions system was a kind of system that judicial organ investigated the specific subjects of criminal responsibility after it had performed specific reproting procedure for approval when the specific main body behavior violated the law and constituted a crime. The subjects that the request instructions system of Han Dynasty applied included both the royal clans, government officials in certain rank, also old persons, children, and the persons that violated law because of family. The request must follow the strict procedure and from low level to high level one by one. The request instructions system in a certain extent reflected the thought of cautious punishment in Han Dynasty, but also played a unified judicial role.