- 著者
-
瀬賀 正博
- 出版者
- 法制史研究
- 雑誌
- 法制史研究 (ISSN:04412508)
- 巻号頁・発行日
- vol.1999, no.49, pp.85-106,en5, 1999
The main purpose of this paper is to make clear the function and the actual effects of legal document <I>Myobo-kammon</I> (_??__??__??__??_) which had influence over the trial, especially the <I>Jin-no-Sadame</I> (_??__??_, the conference at the <I>Jin</I>) in <I>Heian</I> period.<BR>The legal documents <I>Myobo-kammon</I>, which is drawn up by judicial officials or jurists (<I>Myobo-ka</I>, _??__??__??_), is generally understood as a draft of sentence of court, and there, these documents give priority to the interpreta-tion and application of <I>Ritsu-ryo</I> codex (_??__??__??__??_). It is regarded as one of the most important material to study on relation between jurisprudence and judicature under japanese <I>Ritsu-ryo</I> system. Therefore I think that this is an important material to think about the character of administration of justice in ancient and middle ages of our country. However there remain many problems to solve on <I>Myobo-kammon</I> itself. It is necessary to approach the problem what position Ritsu-ryo codex occupies in the legal history of our country from the aspect of operation of law.<BR>Following problems are discussed in this paper.<BR>i) the function of <I>Myobo-kammon</I> at legal proceedings; <I>Myobo-kammon</I> had two different functions, one submitted to the court of justice has the function as a proposal of assessment of case, another one has the function as a sort of legal consultation.<BR>ii) the actual effect of <I>Myobo-kammon</I>, in other words, to what extent can this kind of documents bind authorities who are also judiciaries; essentially <I>Myobo-kammon</I> had however no binding power.<BR>iii) the authority of opinion proposed by <I>Myobo-ka</I>; in the <I>Jin-no-Sadame</I>, authorities are more likely to find in the <I>Myobo-kammon</I> merely a confirmation of what is in their minds already. Nevertheless authorities make <I>Myobo-ka</I> who is specialist of law present his judgement. We must carry out a further examination of this problem.