Research On Trial Mechanism Of Criminal Difficult Cases In Ancient China

The so-called Difficult criminal case refers to a criminal case in which there are doubts about the inquiry of evidence,the application of law,and the conviction of inner.Based on the link of the suspected point in the case,the difficult criminal case can be divided into the evidence difficult criminal case,the legal difficult criminal case and the inner difficult criminal case.The so-called Trial includes two layers of meanings.The first layer refers to the interrogation and investigation of the personnel involved and the material evidence involved in the practice of ancient litigation.This is roughly equivalent to the so-called "investigation" in modern justice;The second layer meaning of trial means that the ancient officials convicted and sentenced the suspected crime according to certain rules,which is roughly equivalent to the so-called "trial" in modern justice.The so-called mechanism refers to the general operation process and specific operation method of things based on a certain principle.The core task of the article is to explore the general process,specific methods,and the ultimate principles behind these procedures and methods in ancient China.In addition to the preface,this article is divided into five chapters.The first chapter is an introduction.The introduction section briefly introduces the three keywords of "Difficult criminal case","Trial" and "Mechanism".The second chapter discusses the principle of ancient Chinese difficult criminal case.The so-called principle refers to the fundamental reason or reason why things need to be one way or another.In this chapter,the balance of humanity and legal are taken as the basic reason of ancient China's trial.Starting from Aristotle's "Four Causes Theory",this article also analyzes the principle into four levels: First,the basic material or basis of the trial is humanity and law.Second,the fundamental purpose of the difficult criminal trial is to achieve peace.Third,the basic form of the trial is discussed on a case-by-case basis.Fourth,the fundamental driving force for the trial is the power of the monarch.The content of the principles at the four levels of material,purpose,form and power constitute the fundamental reason for the procedure and method of trial.The third chapter discusses the procedure of trial in ancient difficult criminal case.This chapter mainly discusses the three trial procedures of Reporting,Recording and Deliberating.Among them,Reporting is a bottom-up procedure for graduallyreporting difficult case from the grassroots to the top,and Recording is a top-down process that initiated by the superior to go to the lower administrative area to conduct prison litigation supervision and find some doubts from it.And Deliberating is a parallel collective discussion process.Although this article divides the formsl into three types: bottom-up,top-down,and parallel,sometimes these three forms are mixed.For example,the public trial that prevailed in the Ming and Qing Dynasties can actually be seen as a mixture of three procedures: Reporting,Recording,and Deliberating.The fourth chapter discusses the method of trial in ancient difficult criminal case.This chapter takes the three types of difficult criminal case as clues,and divides its methods into three content: detective methods against evidence difficult criminal case,decision's methods against legal difficult criminal case and special methods against inner difficult criminal case.At first,this chapter introduces torture,trick,secret visits,forensic examination and so on.If these methods are classified according to Zheng Ke who born in Song dynasty,they can be classified into three types: "Normal way","Deceptive way" and "No technical way".Among them,secret visits,forensic examination and detective experiment can be classified as "Normal way",which is direct investigation.Unlike "Normal way","Deceptive way" is a method that conveying false information to suspect to make him surrender unconsciously.while extorting a confession by torture is a common detective method in ancient,but it does not have much technical content and strategic level.Therefore,it can be called "No technical way".Secondly,this chapter also introduces three methods: adjudicating cases by Confucian classics,adjudicating cases by precedent,and adjudicating cases by similar law.These methods can be collectively called Analogy.The basic idea of??these methods is to seek other laws,jurisprudence,and classic theories that are most similar to the existing regulations when the legal provisions are vague,and then apply by analogy.Finally,this chapter also introduces some special methods: the Divine Judgment Method,the Five Listening Methods,and the Discretion.These methods are derived from the factors such as God 's instructions,suspect's mood or judge 's emotion,instead of evidence or law.The fifth chapter discusses the overall characteristics and modern enlightenment of the ancient trial's mechanism.This chapter summarizes the overall characteristics into three points: diverse and comprehensive,expedient and ethical,sometimes forgiving and sometimes cruel.First of all,if we compare the mechanism of old andbig country with the mechanism of new and narrow country,we will find that the former is more accustomed and more adept at changing from time to time,from place to place and from thing to thing.Second,if we compare the ancient mechanism with the modern mechanism,we will find that the former is more diverse and comprehensive.Finally,if we compare the mechanism of difficult criminal case with the mechanism of normal criminal case,we will find that the former is more expedient and ethical.In addition to this,this chapter advocates that we should think dialectically and inherit abstractly the ancient procedures and methods of trial in difficult criminal case,after studying some difficult criminal cases in contemporary Chinese justice.Furthermore,this chapter advocates the participants of modern criminal legal practice should try to maintain,when encountering difficult cases,the balance between the presumption of innocence and the assumption of guilt,the legality of punishment and analogy,and the independence of trial and external supervision.