Research Of The Proof Mode Of Criminal Justice In Tang And Song Dynasty

The proof mode is the base mode about censoring the competency of evidence and judging the force of evidence. In the point of the history of law, the proof mode can be classified into three types: god judge, legal evidence and free evaluation. As the representation of the proof mode of criminal justice in ancient China, the proof mode of criminal justice in Tang and Song Dynasty can be"the free evaluation focusing on the confession". The four features are presented. The first feature is first confession. The second is the free evaluation. The third is the auxiliary evidence. The fourth is"conviction by all of the evidences"under specific conditions.In this article, the evidence system about the proof mode of criminal justice in Tang and Song Dynasty is firstly researched. I mainly do textual research on the provisions related to evidence in"comments on laws of Tang Dynasty"and"total criminal laws of Song Dynasty"."Five observing"and"inquisition by torture"are two principal ways of gaining and judging confession. There are some detailed rules about the other evidence types such as the witness testimony, material evidence and documentary evidence. There is no express provision on the doctrine of free evaluation, but like the state of Angle-American law system, Tang and Song laws always put forward the view of free evaluation. In addition, the institution of"conviction by all of the evidences"should be applied to specific subject such as"eight interpretations".The institution is one thing and the law enforcement is another. In the third part of this paper, I lay a lot of stress on the law enforcement and research the functioning of the proof mode in Tang and Song Dynasty in the practice of criminal action by the demonstrative method. First of all, four cases are cited to performed the judicial process by five observing in Tang and Song Dynasty. In light of this, there are a lat of methods in the implementation of five observing system. Second,"inquisition by torture"is universal in the practice of criminal action in Tang and Song Dynasty. It is improved by ten cases in table form. Moreover, inquisition by torture beyond law is extremely ruthless and cruel. Third, there are also some methods of interrogation without torture. We set seven cases for example, each with a distinct identity. It is important to note that we cannot find these methods in the codes. They exist with the judicial precedent and have certain influence. Finally, I analyze the evaluation process of the law-officer in Tang and Song Dynasty basing on the cases above. The process mainly include three stages: the cask savours of the first fill at reconnoiter stage; evaluation may be changed at trial stage; the supreme judgment is mainly based on the confession."The free evaluation focusing on the confession"in Tang and Song Dynasty is the inevitable result of the development of Chinese tradition legal culture for several thousand years. In the last part, I make a study of the theoretical foundation of this kind of proof mode. The theoretical foundation of"first confession"is studied in terms of theory of knowledge, political foundation, evidence survey theory and evidence law. The theoretical foundation of"free evaluation"is studied in terms of ideological base, theory of knowledge, law culture and political foundation.