宋朝鞠谳分司制度及其现代启示

在中国古代司法制度史上,宋朝鞠谳分司制度极具特色,其司法机构的设置从中央到地方均体现了审、判分离的特征。案件事实的审理、检法议刑和裁决全过程有着完善的运行机制。鞠谳分司制度具有司法权制约、慎刑和"援法定罪"的功能。鞠谳分司制度对于当下我国实践中的司法裁判权制约问题与法院"内部请示"现象问题的解决具有现代启示意义。

The Trial Division System of Song Dynasty and Its Modern Implications

In the history of ancient Chinese judicial system, the Trial Division system in Song Dynasty was very unique, which was reflected in its trial separation institutions from the central to the local. It had a sound operational mechanism considering the whole process of hearing the case facts, checking method about punishment, conviction and sentencing. The Trial Division sys- tem had the functions of jurisdiction restriction, cautious punishment and legal conviction. In this sense, the system has some implications for the jurisdiction restriction problems and the court ＂internal instructions＂ phenomenon in current China＇s judicial practice.