过渡与互嵌:近代民事诉讼庭审记录的演变--基于龙泉司法档案的研究

Transition and Mutually Embeddedness:Evolution of Court Records in Modern Civil Procedures-A Research Based on Longquan Judicial Archives

民国时期龙泉县的民事诉讼庭审记录经历了三次变化。第一次由传统供词演变为供词形式的讯问笔录,传统的调解型审判模式由此演变为职权主义审判模式;第二次是讯问笔录脱离了供词形式,但审判官可以依职权采用当事人主义原则及言词辩论程序;第三次由讯问笔录变为言词辩论笔录,庭审也严格采用言词辩论程序,但当事人一般不具备独立陈述与辩论的能力,需要根据审判官的问题提示完成言词辩论,因此言词辩论笔录的内容多为审判官与当事人之间的问答,形式上类似讯问笔录。庭审记录的演变呈现出传统与现代的过渡、层叠、互嵌等复杂关系,或为构建近代中国社会转型的互嵌理论提供启示。

Regarding the transformation of the civil trial system in modern China,there is a transitional stage between the traditional meticulous trial mode and the transplantation of the Japanese civil procedure law of adversary system,that is,the civil trial of authority principle.As a product of judicial reform in the late Qing Dynasty,it originated from the Criminal and Civil Procedure Law of the Qing Dynasty revised by Shen Jiaben and Wu Tingfang in the Guangxu 32nd year(1906).The legislative technology of the Trial Regulations of Tianjin Provincial Trial Hall promulgated in the following year(1907)is considered to be the most complete.The Trial Regulations of Trial Halls at All Levels issued in the same year were in force for more than ten years and assumed far-reaching influence.Nevertheless,the above three procedural laws of the combination of criminal and civil law released in the late Qing Dynasty demonstrated obvious defects in legislative technology,while the legitimacy of them was insufficient as well.During the Beiyang period,the adoption of these laws and regulations led to a long period of confusion and entanglement in the rules of civil procedure.According to Longquan Judicial Archives,the court records of civil litigation in Longquan County witnessed three changes during the Republic of China.In spite of the seemingly clear outline of changes,there were actually great ambiguities in their forms and essence.As confessions after 1916 were not presented in a complete narrative way,they were essentially no longer the traditional″confessions″but answers in the interrogation records.Since 1922,the interrogation records discarded the form of confessions,which seemed to be true to the name,but judges were allowed to try in accordance with their authority and adopt the adversary system and the procedure of verbal debate.After 1930,records of interrogation were changed into those of verbal debates,while the procedure of verbal debate was strictly adopted in court trials.However,given that the parties involved generally lacked the ability of independent presentation and debate,they had to complete the verbal debate at the prompt of the judges questions.Hence,the content of verbal debate records was mostly the questions and answers between judges and parties involved,which was similar to the interrogation records in form.The confusion and entanglement of litigation system brought about the complex relationship between tradition and modernity,such as transition,overlap and mutually embeddedness.The transition is characterized by the fact that it can neither abandon the former customs nor realize the complete transformation to the new system,which leads to a blank zone that may also be regarded as a breakage as well.Overlap means that,in view of the complex vertical stratification structure or horizontal regional characteristics in the huge society of China,there is an imbalance of the influence of modernity on different regions in the process of modernization.Mutually embeddedness means that,rather than being completely replaced by modernity,tradition and modernity permeate and reconstruct each other.The evolution of court records is embodied in all the three relationship modes above:(1)The deformation of confession is a prominent case of transition and breakage,as it had separated from the traditional trial mode without having adopted a new trial form yet.(2)The interrogation records are typical manifestations of the overlap state,because they are produced in the crack between the verbal debate procedure and the traditional litigation concept of″confession″.(3)Every change in court records presents an mutually embeddedness structure of tradition and modernity.The deformed confession is to embed modern litigation procedures in traditional forms.The interrogation records embed both verbal debate procedure and traditional confession concept into the court records of authority principle.As for the statement of question-and-answer form in verbal debate,it also cannot exclude the embedding of traditional litigation ideas such as″confession″of parties involved.