张琮军

（中国政法大学，北京 100088）

【摘 要】秦代已经架构了严密的诉讼审判程序，相应的证据运用制度亦较为成熟。在此程序中，覆狱制度扮演着重要的角色，亦是秦代诉讼程序中的精华部分，其对于平复冤错案件，保障公正、准确审断案件意义非凡。覆狱程序中，运用多重证据核验案件。供辞是重要证据，但不轻易采纳，集证言、物证及勘验结论等多种证据，相互印证，以求准确定案。全面复核案件，不受原判决拘束。覆狱不仅核实原审被告和同案犯的供辞，还对原审官吏进行调查、讯问，因为他们是案件原审判决结论的作出者，调查他们对认清案件事实至关重要。若发现存在“失刑”“不直”及“纵囚”等违法裁断行为，则一并追究法律责任。这也证明，秦代覆狱制度不仅在于平复冤、错案件，也在于对法官审断案件进行司法监督。覆狱由多种原因引发，如录囚、诏令等，但就司法制度而言，乞鞫是覆狱的前置司法程序。秦代处于古代法制的奠基阶段，其覆狱证据制度被汉代承继，并对后世影响深远。

【关键词】刑事证据；乞鞫；覆狱；辞证；勘验结论

【中图分类号】D915.13

【文献标识码】A

【文章编号】1674-1226（2021）04-0445-13

A study on the evidence application system in the appellate review procedure in Qin dynasty.Zhang Congjun, China University of Polictical Sciencec and Law, Beijing 100088.

【Abstract】Back to the Qin Dynasty, a rigorous litigation and judicial procedure has been established, along with a rather mature evidence application system. Appellate review procedure not only played a vital role in Qin’s rigorous litigation procedure, but also represented the essence of Qin’s litigation procedure.It was of great significance to the correction of wrongful convictions and the guarantee of fair and accurate adjudication.In such appellate review procedure, multiple evidence were used to review a case. Confessions were important evidence but never easily accepted. In order to make an accurate decision of a case, it is required that a confession should be corroborated with witness testimony, physical evidence, investigation findings and other evidence.The case shall be fully reviewed, and not bound by the original judgement. In addition to verifying the confessions of defendant and his accomplice, the officials in the first instance were also under investigation and interrogation, because investigation of these officials, who made decision of the original trial, was of great significance to the finding of the case facts.If it is found that there were illegal adjudication acts such as “inadequate sentencing”,“injustice”,“releasing prisoners before the sentence term served”, etc., the officials would be punished by law.Hence, it proves that the meaning of appellate review system in the Qin Dynasty was not only manifested by overturning unjust cases and wrongful convictions, but also by judicial supervision over judges’ adjudications. Appellate review could be triggered by different reasons such as prison checking (superior judicial officials tour, check and count prisoners in the prison) and imperial decree.However, as far as the judicial system required, filing a petition for appellate review was a mandatory pretrial phase in an appellate review procedure. The Qin Dynasty set foundation stage of the Chinese ancient legal system. The evidence system applied in appellate review system was inherited by the Han Dynasty, and had a profound far-reaching influence on the later generations.

【Key Words】 Criminal evidence; Petition for appellate review; Appellate review; Testimony; Investigation finding