民初大理院非常上訴判決之研究

A Study on The Extraordinary Appeal Decisions of Dali Yuan in the beginning of Republic of China

我國現行法律體制，乃延續中國大陸清末民初時期，所繼受「歐陸法系」而來；雖晚清變法與辛亥革命成功，但民國初創過於匆促，法制規章等成文法典多未頒行，新舊法制遞嬗交織，此時「大理院」肩負法律審角色，更因大理院判決所表示法律的見解，為全中國各級審判廳所遵從，除了消弭法律之爭議與統一法令之解釋外；其中，非常上訴之判決，亦占大理院判決中，有極大的部分。
本文先以介紹非常上訴之各國立法沿革，並以研究南京「中國第二歷史檔案館」，所館藏北京政府大理院刑事判決原始全文檔案作為基石，全面整理民國初期北洋政府(1912-1928)的大理院時期，就非常上訴所有現存判決作研究，除能收史料整理之效，俾能就大理院時期之實務判決有完整的了解；並與現行我國非常上訴制度實務作比較；同時，亦得藉由此研究，能啟發或釐清現行制度下面臨的問題及其解決之可能途徑。

The existing judicial system succeeded the one that originated from Civil Law and developed during the late of Qing Dynasty and the beginning of Republic of China ('ROC'). Such a judicial system was adopted shortly in late of Qing Dynasty and subsequent ROC. However the establishment of ROC was a surprise and hasty, the new codes and regulations were incomplete and the old one cannot be totally abolished. Under such a circumstances, the trial of law was specifically conducted by Dali Yuan. The legal opinion of Dali Yuan decision was so ordered and followed by all courts nationwide in China. Therefore Dali Yuan achieved the harmony of decisions and unified the interpretation of laws and regulations, including Extraordinary Appeal. The Extraordinary Appeal was decided by Dali Yuan and was the lion's share of Dali Yuan decisions.
This study starts with introducing the Extraordinary Appeal legislation of other states and subsequently takes the analysis on the original text files of criminal judgments of then Dali Yuan Beijing Government, collected by China Nanjing Second Archives, as cornerstone and comprehensively rearranges and studies those present decisions of Extraordinary Appeal of Dali Yuan period in early Northern China Government (1912-1928). In addition to historical screen effect, this study also provides a complete understanding on the practical judgments of Dali Yuan period. Comparison with the current Extraordinary Appeal proceedings of Taiwan, this study tries to inspire or identify the problems of the existing Extraordinary Appeal proceedings and to find out the possible ways to resolve it.