“直诉”源流通说辨正
王捷“直诉”源流通说辨正
Rectification of the Common Theory about the Origin and Development of “Direct Action” System in Early China
期刊名称：《法学研究》
期刊年份：
作者：王捷
单位：华东政法大学法律古籍整理研究所
中文关键词：直诉;审级;周礼;楚简
英文关键词：direct action;trial system;Book of Rites of Zhou;bamboo slips of Chu
中文摘要：
"直诉"一词系近代以来的法史学研究术语.目前,"直诉"源流之通说认为,"直诉"源于西周的"路鼓"、"肺石",成型于南北朝的登闻鼓制.通过考辨可知,《周礼》所载"路鼓"与"肺石"、秦汉至南北朝以前的上书、登闻鼓,均非司法意义上的"直诉",通说关于"直诉"源流的认识不确.此通说形成的原因在于:《周礼》立于官学后,时人多奉《周礼》为理想制度,将"登闻鼓"、"八议"等制比附《周礼》,出现了"法律《周礼》化",历代注家也层累地将"《周礼》化"的各种制度源头定为西周.但是,考诸传世文献并验之以出土法律文献可见,西周至春秋时期尚无明确的审级制度,自然就没有超越审级的"直诉"存在.当时的诉讼或均可视为单级审理的"直诉".包山楚司法简的记载说明,在战国以降逐步确立多级审制的情形下,超越审级的"直诉"在当时已经出现.
英文摘要：
"Direct Action" is a modern terminology in the area of Chinese legal history research. According to the common theory, "Direct Action" originated from the system of Road Drum and Lungs Stone record in the Book of Rites of Zhou, and was institutionalized in the South & North Dynasties. However, the problem with this common theory is that the Road Drum and Lungs Stone system in the Book of Rites of Zhou was an administrative system, rather than a judicial system. It was in fact an administrative mechanism for presenting memorials to the throne during Qin and Han Dynasties, as was the system of Deng Wen Drum during the South & North Dynasties. So it should not be regarded as a judicial system. The historical cause for the formation of this common theory was that the Book of Rites of Zhou had become an orthodox doctrine at the end of the Western Han Dynasty. As a result, the laws of China were standardized by the Book of Rites of Zhou. In fact, the "Direct Action" system was established as an official legal system in the State Chu during the Warrior States Period. The unearthed Baoshan bamboo slips of Chu have evidenced this historical fact. So the common theory that the "Direct Action" system was institutionalized in the South & North Dynasties is incorrect.
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