晚清民初自白之發展 ──以規範與學理為考察中心

Abstract

晚清變法修律之時，除修訂法律館大量譯介外國法律制度與法律理論外，朝廷聘請外國法學者，協助立法。本文嘗試以規範變遷與學理論述為對象，討論刑事訴訟自白觀念的形成與發展。制度上，從晚清修纂的《刑事民事訴訟法》、《大清刑事訴訟律》到民初的《刑事訴訟條例》等三部刑事訴訟法典，前二者雖未頒行，仍於刑事訴訟法史上具有一定的意義，特別從中得見自白觀念的發展；學理而言，當時大量引介日本法理，或學者，或實務家，一如吾人所知。但時間是動態的。即便當時我國繼受日本刑事訴訟法學理論，時間不同，其呈現的面貌也有所異。總言之，本文將論述不同時間點的日本刑事訴訟法及其理論於我國法律繼受的影響，反思自白於當時法律繼受的發展。

Except of translations of foreign legal structures and theories by the Legal Affair Bureau (Xiu Ding Fa Lu Guan), the Qing government also employed foreign scholars to assist in legislating. This article, which focuses on norms and theories, tries to discuss the development of the idea of confession in the criminal procedure. In norms, we can discover the development of the idea of the confession in the three criminal procedure codes, which the two formers were legislated in late Qing dynasty but were not in practice and the later one in early Republic of China, contra the formers. In theories, there was lots of Japanese theories form the scholars or judges as we know today. But time is dynamic. Even though it was the reception from Japan in that time, it still appeared different faces by times. To summarize it, I would like to tend to discuss the influences of reception in criminal procedure law form Japan in different period and re-think about the development of the idea of the confession during these period.