西汉使者循行“举冤狱”之制考析

An Investigation and Analysis of The Envoy Patrol and Report “Not a Fair Criminal Trial” in Western Han Dynasty

西汉使者循行"举冤狱"之制萌芽于武帝时期,自宣帝时期形成定制。这一机制的形成,一方面是汉代儒家德礼政刑学说、天人相与学说、灾异谴告学说及司法时令说对政治法制影响的结果,另一方面也是西汉中后期改善地方司法状况的权宜之计。西汉使者循行"举冤狱"之制实质上是一项错案发现及纠正的特别机制,这一机制在司法实践中虽然有助于冤案的发现及纠正,但也因本身所具有的随意性而使得对冤案的发现及纠正具有局限性。

The envoy patrol and report＂not a fair criminal trial＂in Western Han Dynasty originated from the period of Emperor Wu,in the Emperor Xuan period it was officially formed. The mechanism of formation,on the one hand was the result of the influence of new Confucian philosophy in the Han Dynasty. These philosophical theories involved that the principle of morality,etiquette,political,legal system,the relationship between the natural world and man,the warning significance of natural disaster and the theory of judicial season. On the other hand,it is a matter of expediency to improve the place judicial status in the medium and later stage of Western Han Dynasty. The said system is essentially a special mechanism of investigate and correct＂ not a fair criminal trial,which although contributes to discover and correct unfair criminal cases in the judicial practice,however,because of its inherent randomness,there was some limitations in it.