宋代录问制度考论

The Detailed Discussion on the System of Luwen of the Song Dynasty

宋代的法律在中国法律史上达到了一个新的高度,其制度设计堪称精妙。鞫谳分司制度实现了"审"与"判"的分离,是司法分权制衡加强中央集权和儒家慎刑恤狱思想的集中体现。案件经审案官推鞫结案,由不需要回避的其他官员提审犯罪嫌疑人进行录问,录问翻异则案件推倒重来,选未涉案的其他官吏再次推鞫,录问无翻异则检法议刑由谳司审定结案。这种案件经推鞫官审结,在没有检法议刑之前由其他司法官吏提审犯罪嫌疑人对案件进行核实复审的制度是宋代重要且独有的司法制度。录问制度不仅适用于刑事案件,也适用于民事案件。虽然录问制度在当时的历史环境下存在许多弊端,但从历史角度看,对于防范滥施刑讯和及时纠正冤假错案具有一定的积极意义,不失为民本思想的一种体现。

The law of the Song Dynasty,with its exquisitely crafted judicial system,reachs the acme of the history of ancient Chinese law. The Ju Yan Fen Si system achieves the separation of ＂trial＂and＂judgment＂. It is the epitome of strengthening centralization through the separation of judicial powers and the ideas of cautious administration of punishment and sympathy with prisoners by Confucianism. The case was adjudicated by examining judges. The officials who are not involved in judicial challenge will perform the process of Luwen. The case was overturned if suspects withdrew a confession through Luwen and the other officials not involved in the case made further trial. If there is no overturning of case after Luwen,the judges determine punishment and close the case. This system of other judicial officers bringing suspects to trial for re-examination before the establishment of punishment was determined by law enforcement department is a key and unique judicial system of the Song Dynasty. Apart from criminal cases,this system also applies to civil cases. Although the Luwen system has many drawbacks in the historical environment of that time,it has some positive significance for the prevention of torture and timely correction of miscarriage of justice. Thus,it is an embodiment of people-oriented thinking.