古罗马刑事诉讼制度与模式探微

On the Model and the System of the Criminal Procedure of Ancient Rome

在古罗马王政和共和时期,按照犯罪行为的性质不同,诉讼程序分为"私犯之诉"和"公犯之诉"。"公犯之诉"又分为两人审委会与民众会议主持下的"公犯之诉"、执法官提起的"公犯之诉"以及陪审团参与的审判程序。无论是"私犯之诉",还是"公犯之诉",从诉讼模式角度考察,都属于弹劾式诉讼。随着帝制代替共和制,在普通审判制度之外,又形成了"非常审判程序"。从诉讼模式考察,它属于纠问式诉讼。这标志着古罗马刑事诉讼模式的转型。其间,犯罪观念的更新以及政体性质的改变起了决定性的作用。

During the period of the reign and of the republic in ancient Rome, the procedure was classified as 'the procedure dealing with climina' and 'the procedure dealing with delicta' according to the nature of the actions. The latter included three types. Both of them belonged to the model of accusatorial system. With the transition from the republicanism to the imperialism, the special judicial procedure came into being. It belonged to the model of inquisitorial system, which embodied the transformation of the model of the criminal procedure which was resulted from the change of the conception of crime and the nature of the political system.