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司法部国家法治与法学理论研究重点项目“我国古代死刑控制机制研究”(16SFB1009);吉林大学廉政建设专项研究课题“中国古代司法监察的运行机制及其当代镜鉴”;吉林大学司法大数据实证研究项目“我国传统司法‘服判’智慧的镜鉴研究”的资助
“以民为本”是我国古代司法治理的核心,在司法实践中表现为“惠施于民”、“德教于民”、“刑威于小人,使之为民”等具体原则。“惠施于民”的根本在于与民同利, “德教”与“刑威”相辅为用亦是“惠”之表现。地方官以“以民为本”的理念,主导着治狱理讼之实践。导民“无讼”是救过于未然之策略,重视“明德既明”的作用, 以榜文告示的形式广开示谕惠德教民、刑威于小人,以有限合理的方式和处事情以息民争;对于已然之讼狱,要重视听讼折狱以定曲直雪冤枉的裁判功能。“罪因情科, 案凭证定”之处断在于使民信服。作为辅助性的“用谲”虽可“得情”,但又不可为常, 以免不正之“谲”肆虐于民。我国古代的司法文明对于当今的司法治理具有镜鉴与启示意义。
“People-oriented” is the core of ancient Chinese judicial governance. In judicial practice of judicial governance, it is manifested in specific principles such as “benefit to the people”,” moral education to the people” and “punishment to the villain to make it for the people”. The essence of “benefit to the people” is in keeping with the interests of the people. “Moral education” and “punishment” are applied in a complementary manner. It is also the performance of “benefit to the people”. Magistrates dominate judicial practice with the concept of “people-oriented”. Guiding the people’s “no-litigation” is a strategy for correcting errors before they happen. Pay attention to the role of “bright virtue”, On the one hand, in the form of bulletin notices, widely publicized and enlighten the people with benefits virtues and punishment. On the other hand, handle things peacefully in a limited and reasonable way to quell the fighting among the people. For litigation that has been occurred, we should attach importance to the function of judgment and try the case fairly and impartial manner. The key to the success lies in convincing the people with “Criminal behavior to determine by the circumstances of the case, the case is determined by evidence.” As an auxiliary method, “deceitful” could “find out the plot of the case”, but it cannot be used frequently, in order to avoid the unjust “deceitful” is harm for the people. The judicial civilization of ancient China has a significance about reference and enlightening for contemporary judicial governance.
吕丽,邱玉强.我国司法治理的传统智识——以古代地方官“无讼”与“听讼”实践为中心*[J].上海对外经贸大学学报,2021,(3):88-101.
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