The Birth and Development of Confession: Focus on the Criminal Judgments of Supreme Court in Early Republic of China

清季，修訂法律館大量翻譯、草擬各式西式法典與草案；民國初年，除法典編纂會、法律編查會、修訂法律館等專職編修法律機構外，另有當時最高審判機關——大理院(1912-1928)——以判決例與解釋例，引進近代西方法律概念於司法實踐。最引本文關注的，即是刑事訴訟自白之轉化，特別是當時學者、實務家本於自身固有文化中對於自白之理解，面對近代西方法律思維下的自白概念，其繼受如何可能？對此所衍生出來的議題有三：其一，傳統中國之「自白」為何？其於刑獄之意義為何？其二，晚清民初刑事訴訟自白之繼受如何進行？當時的法律工作者如何討論之？其三，自白之意涵於中、西文化究竟為何？ 刑事訴訟自白的繼受，不僅是刑事證據法之重大變革，更涉及對於被告作為主體與否的認知，因此本文以此為討論對象，探討刑事訴訟自白於晚清民初法律繼受的生成及其發展，分別於第二章重構傳統中國刑獄斷案對於招供的認知與需求，第三章論及晚清民初刑事訴訟自白繼受之各方論述並考察民初大理院對此之見解，第四章則以法律思想史的徑路反思自白於中、西方文化脈絡之意涵，最後作出結論。 傳統中國刑獄斷案中，招供扮演著很重要的角色，一般多認為傳統中國斷獄過分地強調招供以致於「屈打成招」、「押人取供」的現象層出不窮，也因此導出了傳統中國於刑案審理時濫用刑訊的陋習，但並非所有刑獄皆如是，而以人命、賊盜重案為限。傳統中國之招供並不等同於繼受歐陸法而來的自白概念，不只是具有證據之性質，更是審判官做成看語的必要要件。然而，正因為對於犯人招供之必需，清代律典規定於一定條件下得對犯人施以刑訊，目的在於取得犯人招認、供詞以完成看語。制度化的目的也在於避免承審問刑官員之濫權可能。 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。制度上，從晚清修纂的《刑事民事訴訟律》草案、《大清刑事訴訟律》草案到民初的《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，一如世人所知。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，不同意見相互激盪下，刑事訴訟自白之觀念逐漸生成，更在民初最高審判機關——大理院——諸多刑事判決、例之司法實踐下，逐步發展，即今日所見之自白。 刑事訴訟自白的意涵，就文化脈絡而言，可分別追溯自基督教神學及宋明理學，但殊途同歸的是，自白並非只是證據，更表示著自白者接受刑罰的意願，達成改過向善的自我治理目的；不只是被告陳述自己犯罪行為，也是表示自己後悔曾經有所行為。所謂發現事實所為並非為真，僅係推事、檢察官與被告三方互動所構築且為推事所認定的事實，甚至僅是推事與被告之間互動所得且為前者肯定之故事，其所欲者仍在於使被告接受刑罰以作為悔罪之補償，刑罰因此具有正當性，而被告藉此自我治理以完全。The Legal Affair Bureau translated and drafted lots of Western Codes and Laws in late Ch’ing Dynasty; besides many bureaus of legal affair, there still was the supreme court who introduced the western legal conception by judgments and explanations practiced the laws. What this thesis focuses is the transformation of the confession in criminal procedure, how and what realizations of the scholars, judges, etc. form the culture themselves to face the conception form modern western jurisprudence is, especially. So there are three sub-questions: the first, what is the “confession” in traditional Chinese? What does it mean in the criminal procedure? The second, how does the reception of confession in criminal procedure and how do the legal practitioners discuss is? The third, what is the meaning of confession in the Chinese and the Western civilization? The reception of the confession in criminal procedure was not only the great revolution of criminal evident law, but also the acknowledge to the accused as the subject or not. Henceforth, this thesis discusses the birth of the confession in criminal procedure and its development during late Ch’ing Dynasty and early Republic of China. As the beginning, in Chapter 2, this thesis reconstructs the acknowledge and need of the prepositions and the recognitions of the denounce （招供）in traditional Chinese criminal procedure, this thesis represents the discussions about the reception of the confession in criminal procedure during late Ch’ing Dynasty and early the Republic of China and the judgments of the supreme court in the later time in Chapter 3. Then, in Chapter 4, it tries to introspect the meaning of the confession in the context of Chinese and Western civilization in the approach of the history of legal thought. And it would be the conclusion in the end. The proposition and the recognition of the denounce play the important roles in the judgment and it would be too many tortures because of the emphasizing them. It’s the mainstream that it thinks that it would be abused to torture the accused, or the witnesses during the procedure of judgment. But not all of the procedures are that, instead of the judgment about death or the thief, etc. The proposition and recognition of the denounce are not equal to the confession from Western civilization; they are not only the evidence but also the essential elements of the temporary judgments (which is confirmed by the upper bureaucrats). However, because of the necessity of the proposition and recognition of the denounce, it’s allowed to torture the accused with conditions in the Ch’ing Code to get them to judgment achieving. The purpose of the institutionalization is to avoid the abuse by the bureaucrats. In addition to translation and introduction of foreign legal system and theories, the Ch’ing government also employed the foreign legal experts who assist the legislation. In the legal institution, there was the transformation of the concept of the confession in three criminal procedure codes that the two former legislated in Ch’ing Dynasty without enforcement and the latter enforced in early Republic of China. In the theories, there were so many Japanese scholars and practitioners who introduced the theories, as we know. Even though the reception of the legal theories from Japan, there still were different opinions in the same time or in different periods. Under this circumstance, the concept of the confession in criminal procedure birthed gradually; furthermore, it developed through the practice of the supreme court in early R.O.C.（大理院）, as we’ve seen today. In view of civilization, the significance of the confession in criminal procedure can trace to Christian Theology and Neo-Confucianism individually, but they have the same implication: the confession isn’t just the evidence, but the man who confess volunteer to accept the punishment to complete to the care of self. It’s not only the propositions of what the accused had done by self, but also regret it. So called “truth-discovering” isn’t for the truth, the truth that is constructed and acknowledged by the judge, procurator and the accused. Moreover, it's just the story between the judge and accused and accepted by the former to get the legitimacy of the punishment to be the compensation that the regrets of the accused’s guilt. And through it, the latter take the care of self to be completed