“出入人罪”的司法导向意义——基于汉、唐、宋、明四代的比较研究

The Juridical Introductory Significance of Unjust Verdict: a Comparative Study

法官责任制度通过法官的自保心理而影响司法,"重出罪"还是"重入罪"是司法的重要指挥棒。秦汉时期"失刑"由政治概念发展成法律概念,秦汉开创的"缓深故,急纵出"的责任制度是其时刑法冤滥的关键因素。唐律在"重入轻出"的精神下创制了优良的出入人罪制度,宋代则辅之以相关人事制度以保障之,这成就了辉煌的唐宋文明。而明代悖离唐宋传统,重出轻入的法官责任立法,则是明代冤狱蔓延、社会萎靡不振的重要原因。

Justice is always impacted by the judge＇s self - preservation psychological state, in which how to judge crimi- nalization or the non - criminalization is an important baton in the administration of justice. In the Qin and Han dynasties, non - punishment developed from a political concept into legal concept, and they created the responsibility system of pru- dent judgment in criminalization and quick decision in non - criminalization was a key factor in their discretion abuse of the criminal law. The corresponding system in the Tang dynasties under the guidance of ＂more attention paid to the criminaliza- tion than non - criminalization＂ had created as an excellent system in this area, which was supplemented in the Song dynas- ty through the related personnel system to guarantee, and finally it forged the brilliant civilization of the Tang and Song dy- nasties. However, the situation in the Ming dynasty was diverse and thus led to the underdevelopment of its society.