中国传统司法中的察狱以情及其现代价值

The Use of Reason in the Investigation of Cases in Traditional Chinese Justice and Its Modern Value

察狱以情是中国传统司法的一个重要特色。其语义源头为《左传》所载鲁庄公之言,实质源头则为《周礼》中的“以情讯之”。“察狱以情”中的情有广义与狭义两种。察狱以情既有入罪功能,亦有出罪功能。入罪之情必须满足发生在争议事实之后与违反常理两个条件。出罪之情则有通过判断事实出罪与判断证据出罪两种表现。察情入罪与出罪在标准、对象、主体与结果四个方面都存在差异。传统的司法理论更重视察情的出罪功能。察狱以情与当代的经验法则相比既有相同之处亦有区别。相同之处在于两者都以日常生活经验为判断事实的依据。不同之处有三:一是经验法则只能判断证据事实,不能判断案件事实;而察狱以情两者都可以判断。二是依经验法则判断的事实为确定性事实,而察狱以情判断的事实为可能性事实。三是依经验法则倾向于对事实作出肯定性判断,而察狱以情倾向于对事实做出否定性判断。当代司法借鉴察狱以情,应当做到慎用入罪之情,重视出罪之情,如此可有效避免冤狱形成并能为已形成的冤狱平反。

The use of reason in the investigation of cases is an important feature of traditional Chinese justice.Its semantic source is the words of the Duke Zhuang of Lu as contained in the Zuo Zhuan,while its substantive source is the Rites of Zhou's phrase‘to interrogate with reason'.There is a broad and a narrow sense of reason in this term.It has both an incriminating and an exculpating function.An incriminating circumstance must occur after the disputed facts and be contrary to common sense.The exoneration of guilt can be achieved by judging the facts and the evidence.There are differences between incrimination and exculpation in terms of criteria,object,subject and result.The traditional judicial doctrine has placed greater emphasis on the incriminating function of the investigation.There are both similarities and differences between the use of circumstances in the reason-based investigation of cases and the contemporary rule of thumb.The similarity lies in the fact that both are based on everyday experience.The differences are threefold:firstly,the rule of thumb can only judge the facts of evidence,not the facts of a case,whereas the use of reason in the investigation can judge both.Secondly,the facts judged by the rule of thumb are definite facts,whereas the facts judged by the court considering reason are probable facts.Thirdly,the rule of thumb tends to judge the facts with positivity,whereas the reason-based judgment tends to judge the facts with negativity.If the contemporary judiciary wants to draw lessons from this method concerning reason,then it should be cautious about using incriminating facts and pay more attention to exculpating facts,so as to effectively avoid the unjust jails and to vindicate those that have been formed.