中国论文：试论中国古代刑讯制度.docVIP

中国论文：试论中国古代刑讯制度 【中文摘要】刑讯源自远古的神判,始于西周,横亘二千余年,自唐代时迈向成熟,自明清时走向没落。刑讯是证据采集的手段之一,亦是司法程序的重要组成部分。纵观中国古代立法,《唐律》是刑讯制度的集大成者,后世历朝关于刑讯的立法大多以《唐律》作为蓝本。中国古代关于刑讯的立法虽对刑讯对象、刑讯手段、刑具的使用以及违法刑讯应承担的责任基本作出了规定,但由于中国古代刑事诉讼采用“有罪推定”的断案原则和“口供至上”的证据规则,且缺乏有效的人权保障手段,司法实践中所存在的违法拷讯和法外拷讯现象屡禁不绝。再者,中国历代统治者为保障其统治稳固,极度重视刑狱,在这种环境下,刑讯便不可避免地成为审理案件的必要手段。正因为如此,刑讯制度贯穿了中国整个封建社会,虽在一定程度上保证了刑事诉讼的顺利进行,却也在客观上屡屡造成冤案。如果不是因为清末内外压力,合法的刑讯制度恐仍将继续下去。 【英文摘要】The inquisition by torture originated from the ancient ordeal and came with the Western Zhou Dynasty, spanning more than two thousand years, maturing from the Tang Dynasty and declining since the Ming and Qing Dynasty. The inquisition by torture is one of the means for evidence gathering and also an important part of the judicial procedure. Throughout the ancient Chinese legislation, the Tang Code is a master of the inquisition by torture, on which most legislation of later dynasties on inquisition by torture was based. Although the legislation on the inquisition by torture in ancient China have made basic provisions on the inquired, inquisition methods, the use of torture instruments and the liabilities to be borne from the inquisition in violation of the law, the inquisition in violation of the law and out of the law failed to be eliminated in the judicial practice due to the reasons that the criminal procedures in ancient China adopted the decision principle of “presumption of guilt” and the evidence rule of “confession first”, and there was no t effective means to protect human rights. Furthermore, China抯 rulers in all the dynasties attached great importance to the prison administration for the purpose of protection of the stability of their rule and under such circumstance t现he inquisition by torture would inevitably become a necessary means to hear the case. It was for such reasons that the inquisition by torture ran through the whole feudal societies in ancient China, which caused numerous unjust cases while guaranteed the smooth development of the criminal procedu