清末改革司法职权配置考察
陈灿平,柴松霞清末改革司法职权配置考察
Allocation of Judicial Functions and Powers in Late Qing Dynasty
期刊名称：《法学研究》
期刊年份：
作者：陈灿平,柴松霞
单位：天津财经大学法学院;天津财经大学法学院
中文关键词：司法职权配置;清末修律;司法改革;部院之争
英文关键词：allocation of judicial functions and powers;revising laws in late Qing Dynasty;judicial reform;conflict between Central Judicial Office and Ministry of Justice
中文摘要：
清末改革中按照立宪政体和三权分立模式建立起相对独立的司法权体系，但法部的司法行政权过大，处处与大理院争权，对审判权的独立行使构成阻碍。大理院内审判权与检察权初步实现了职权独立和相互制约，但对外都受到法部的制约，难以发挥各自应有的作用。清末缺少足够的新式法律人才、配套法律和财政支撑，社会也没有相应的思想准备，尤其是清政府力图强化中央集权和政策统一的指导思想都影响了新建立的司法权体系的独立运行。
英文摘要：
The relatively independent regime of judicial power was set up in late Qing Dynasty based on the constitutional government and the separation of the three powers. The judicial administrative authority was so strong as to hinder the independent execution of the jurisdiction. During the reform course of the allocation of judicial functions and powers, late Qing Dynasty attached procuratorate into the Central Judicial Office. But the procuratorate was administratively led by the Ministry of Justice, and the powers of court and procuratorate were also influenced by the Ministry of Justice. Nevertheless, procuratorate played an important role in replacing inquisitive trial by impeachable trial, distinguishing civil case from criminal case, establishing new trial grades, and legitimizing the judicial procedure. In late Qing dynasty, judicial administrative authority had an obvious feature of transitional period. Legal talent was very scarce and the state finance was very weak. The legislation did not form a complete set or system either. Totally speaking, the deforms in political structure, legal thoughts, legal talents, legislative skills and financial support, especially the intervention by the imperial power and the conflict between Central Judicial Office and Ministry of Justice, influenced the independent function of new regime of the judicial power seriously in late Qing Dynasty. Because the destination of the judicial reform was to strengthen the power of the state to resist the foreign invasion, the relatively independent judicial power also served for consolidating the central power. So the judicial reform design of mighty judicial administrative power and relatively weak power of court and procuratorate was a practical and forced choice. The design was concordant with the political tradition of China, the social environment and the actual relationship among political powers at that time. We should know and respect the choice of our ancestors under the special conditions. We need to reasonably think the interactive relationship among the judicial system, historical tradition and the social environment.
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