民国刑事司法中传统元素传承的原因及启示

The Reasons for the Inheritance of Traditional Elements in Criminal Justice of the Republic of China and Its Enlightenment

民国刑事司法在制度和实践上体现了传统法律的元素,这种传统回归,根源在于近代法律的“强行移植”,而传统司法的某些特性也符合民国社会的实际需要。民国时代即有回归司法传统、构建“民族司法”的学术思潮,民国司法传统传承的理论与实践,也有深化对法律移植理论思考的学术意义。

The basic system of criminal justice in the Republic of China originated from the reform of law in the late Qing Dynasty,and it also inherited the elements of traditional law in system and practice to meet the needs of reality.The return tradition of criminal justice is rooted in the“forced transplantation”of modern law.Some characteristics of traditional justice also meet the actual needs of the Republic of China.In the period of the Republic of China,there was an academic trend of thought of returning to the judicial tradition and constructing“national justice”.The theory and practice of the inheritance of the judicial tradition in the Republic of China also had the academic significance of deepening the theoretical thinking of legal transplantation.