试论两汉司隶校尉之司法职能

On the Trial Judicial Functions of Ombudsman in Han Dynasty

现代司法的核心是法治与分权基础上的判断权,而传统中国因行政兼理司法之故,"无案不众官,无官不司法",司法职能被包容于行政、监察乃至军事体系之中,传统司法也呈现出行政色彩颇浓的"处断权"之特征。司隶校尉作为西汉武帝时筹设并在两汉时期发挥重要作用的常设机构,"职监察而兼理司法",行使着一定程度的刑事司法职能,但此职能的行使又受制于分工行政的政治传统而导致效能有限。两汉司隶校尉司法职能之效能是封建社会早期司法状况的缩影,从发生学意义上讲,它有助于我们更好地认识帝制时代中国的司法传统。

The judgment right based on the rule of the law and decentralization is the core thought of modern justice.However the traditional Chinese administrative department held both the rights of administration and justice. "where there is cases there is officers,and where there is officers there is judgment." Judicial functions are embraced in the administrative,surveillance,and even military systems.Traditional justice also shows the characteristic of "executive right" with strong administrative color.Colonel-Director de Retainers system,as a permanent institution established by the Emperor Hanwu of the Western Han Dynasty,executed both surveillance and judiciary and even some kind degree of criminal justice function,played an important role during the Han Dynasty.However,this implement of the function was limited by the political tradition of administrative division of labor.So the effectiveness was terminated.The effectiveness of the judicial functions of Colonel-Director de Retainers system of Han Dynasty was an epitome of the early judicial situation in feudal society.In a genetic sense,it helped us better understand the traditional justice in the imperial age of China.