【作者】 黄道诚；

【导师】 郭东旭；

【作者基本信息】 河北大学 ， 中国古代史， 2009， 博士

【摘要】 中国古代以刑为主的法律传统决定了中国古代侦查现象出现较早,侦查技术比西方先进。据史料记载,秦汉时期,司法人员已开始运用现场勘验和尸体检验的方法收集证据,侦破案件。此后,随着人类文明的演进和科学技术的不断发展,侦查制度和侦查技术也在不断地进步。从法律制度方面看,唐代实现了礼法的完美结合。但从侦查制度和侦查技术方面,宋代在中国古代侦查史上呈现出最高水平。从社会秩序的角度看,宋代是一个民族矛盾和阶级矛盾突出、治安形势较严峻的历史时期,贼盗泛滥,豪强恶势力横行,“妖教”猖獗,恶性案件频发。从大辟案件来看,宋仁宗嘉祐五年(1060)的人数是唐开元二十五年(737)的四十多倍。在这种社会背景下,宋代统治者和司法官员不仅加强了侦查立法,而且重视总结侦查经验,研究侦查对策。因此,中国古代最详备的两部侦查学著作《洗冤集录》和《折狱龟鉴》在此时问世。宋代是一个重视法制建设的社会,为了治安防范的需要,在制定“贼盗重法”、严惩犯罪的同时,、不断总结侦查实践经验。一方面使宋代的检验技术达到了当时世界的先进水平,另一方面使检验制度完成了系统化、制度化和法律化。完备的取保候审制度,无论在适用条件,还是运行程序方面都已接近当今的立法水平。宋代的侦查手段,不仅灵活地运用现场勘验、搜查、耳目布控、侦查实验、悬赏通缉等多种方法,鞫、察、核、迹等相结合,而且善于运用谲术擿奸钓匿、取证擒贼,将心理学原理巧妙地应用于侦查实践。在侦查技术方面,宋慈提出的“先静后动”的勘验规则和尸体检验、现场勘验、现场访问三位一体的勘验模式,并对现场勘验的条件、步骤和方法进行了详细阐述,使宋代检验和现场勘验的水平均领先于世界各国。《洗冤集录》不仅是世界上最早的法医学著作,而且是中国最早记载现场勘验技术的侦查学著作。“先静后动”的勘验规则,西方国家在十九世纪后期才认识到,而在十三世纪的宋代,这一侦查“黄金规则”已经被办案人员应用到了侦查实践中。宋代现场勘验中的绘图技术、悬赏通缉令的广泛使用,亦是宋代侦查中独具特色之处。宋代是中国古代历史上少有的重视证据的朝代。不仅在立法上确立了严格的证明标准,在侦查实践中,运用各种手段广泛收集证据,而且灵活使用甄别、比对、质证、实验、综合分析等多种方法辨析证据真伪,对证据的证明力有了科学的认识,形成了物证优于人证的证据理念。宋代不仅侦查手段、侦查技术有了长足的发展,侦查理论也有了很大提高。尤其是郑克《折狱龟鉴》的按语中,提出了正术和谲术相结合、察情和据证相结合、治狱贵缓、受捕贵详等理论,对耳目运用的策略、五听和情理察狱的技术、审讯的技巧、发现犯罪线索的手段、谲术使用的要求等问题,作了较全面的阐释。如果说宋慈的《洗冤集录》是中国最早记载侦查技术的著作,那么郑克的《折狱龟鉴》就是中国最早记载侦查方法的著作。因此,《折狱龟鉴》和《洗冤集录》是中国古代侦查学的奠基之作。总之,宋朝的侦查制度的完备程度和侦查技术的高超水平不仅领先于前代,亦领先于当时世界水平。而宋代严峻的治安形势是其侦查技术发达的主要动因；统治者对法制的重视和司法官员法律意识的增强,是宋代侦查制度完备的前提条件；经济的繁荣和科学技术的进步亦对其起到了重要的推动作用。更多还原

【Abstract】 China attached great importance to employing criminal legislation to regulate social relations in ancient times. The legislative tradition centered on crime determines that the detection phenomenon in ancient times appeared earlier and more advanced than the West. According to the historical data, in Qin and Han Dynasty, the judicial officials started using inspection of the scene and the autopsy approach to collect evidences. Hereafter, along with the evolution of the human civilization and the development of science and technology, the detection system and the detection technology are also advancing. From the perspective of the legal system, the Tang Dynasty has achieved the perfect combination of Etiquette and legislation. But from the perspective of the detection system and the detection technology, Song Dynasty mounted to the peak in the history of ancient detection in China.From the perspective of social order, Song Dynasty was a historical period that ethnic conflicts and the class contradictions were prominent and the social order was severe; thefts and robberies, mafia-style gangs, demon-style sectarians were Rampant, and violent cases were frequent. The malignant case’s incidence rate of cases rose. The population of Sentences the death penalty in the year of fifth of Ren zong Jia You is more than 40 time than The twenty fifth of Kai Yuan of Tang Dynasty Under these social circumstances, the rulers and the judicial officials in Song Dynasty had strengthened the detection legislation, and emphasized summarizing detection experiences and studying detection strategy as well. The two most detailed detection works "Washing Away of Wrongs (The Hsiyuan chilu)" and "Folds Prison Turtle Warning" were published at that time.Song Dynasty was the society that valued legislation, for the sake of public security, while it formulated law of punishment on the thieves and robbers and heavy punishment on criminals, it accumulated detection experiences unceasingly, This move, on the one hand, made the examination technology in Song Dynasty climb to advanced world level at that time, on the other hand, the move also makes the examination system systematic, institutionalized, and legislative. The complete bail pending trial system has been close to the present legislative level, regardless of the suitable conditions and the operating procedures.The detection strategies in Song Dynasty, and the detection technology had achieved the high stratification plane. In the detection method aspect, Song Ren utilized many and varied methods for detection investigation, such as inspection of the scene, searching, informer bringing under control, the detection experiment, to post a reward nimbly to issue a warrant for arrest and so on. In terms of detection technology, Song Ci put forward the rules of examination " unmoved first" and the trinity pattern of examination:body examination, examination of the scene and on-the-spot interview, and elaborated in detail the conditions of the examination of the scene, procedures and the methods, which made the inspection and examination of the scene in Song Dynasty outrun the other countries then. "Washing Away of Wrongs (The Hsiyuan chilu)" was not only the earliest work of forensic science, but also the earliest detection study book which records the technology of inspection of the scene. Not until the late-19th century did the western countries realize the rules of examination "unmoved first". However, as early as in the 13th century’ in Song Dynasty, this "the golden rule" for detection, has already been applied by those in charge of the cases into practice. The widespread use of the mapping technique of the examination of the scene and the reward for the arrest warrant are characteristic of the detection in Song Dynasty.Song Dynasty is a rare Dynasty which emphasizes evidences in the history of ancient China. It sets up strict proof standards in legislation, and in detection practice, it collects widely evidences by all means, besides, it employs various methods such as screening, comparison, questioning witnesses, experiments to distinguish right and wrong of the evidences, therefore, it has scientific understanding in the proof of the evidence, and establishes a notion that matter witness are prior to personal testimony.The detection technique and the detection approach leaped in Song Dynasty, and the detection theory as well. Only had Zheng Ke "To fold Prison Turtle Warning" investigates and deals with the method to the case to carry on the appraisal. In this book’s commentary, Zheng Ke proposed the detection theories, such as technique and deceives technique to unify, to observe and evidence to Unifies, governs the prison, Gui Huan, Shou Bu Gui Xiang and so on. He had given the comprehensive explanation to the informer utilization’s strategy, Wu Ting and the sentiment Richard prison’s technology, the interrogation skill, discovered crime clue’s method, The request of using deceives technique and so on. If Song Ci’s "Washing Away of Wrongs (The Hsiyuan chilu)" is the earliest work that records detection technology in china, Zheng Ke’s "Folds Prison Turtle Warning" is the earliest one recording the detection study. Hence, "Folds Prison Turtle Warning" and "Washing Away of Wrongs (The Hsiyuan chilu)"are the foothold of ancient China’s detection study.In brief, the perfection of the detection system and the advancement of the detection technology in Song Dynasty not only outrun the previous times, but also hold a leading position in the world at that time. The severe security situation is the main cause for the advancement of the detection technology; the importance attached to the rule of law by the rulers and the improvement of legal consciousness of the judicial officials, are the precondition for the perfection of the detection system; the booming economy and the advancement of science and technology also add fuel to the perfection.更多还原