文献一覧: 瀬賀正博 (著者)

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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 Myobo-kammon (_??__??__??__??_) which had influence over the trial, especially the Jin-no-Sadame (_??__??_, the conference at the Jin) in Heian period. The legal documents Myobo-kammon, which is drawn up by judicial officials or jurists (Myobo-ka, _??__??__??_), is generally understood as a draft of sentence of court, and there, these documents give priority to the interpreta-tion and application of Ritsu-ryo codex (_??__??__??__??_). It is regarded as one of the most important material to study on relation between jurisprudence and judicature under japanese Ritsu-ryo 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 Myobo-kammon 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. Following problems are discussed in this paper. i) the function of Myobo-kammon at legal proceedings; Myobo-kammon 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. ii) the actual effect of Myobo-kammon, in other words, to what extent can this kind of documents bind authorities who are also judiciaries; essentially Myobo-kammon had however no binding power. iii) the authority of opinion proposed by Myobo-ka; in the Jin-no-Sadame, authorities are more likely to find in the Myobo-kammon merely a confirmation of what is in their minds already. Nevertheless authorities make Myobo-ka who is specialist of law present his judgement. We must carry out a further examination of this problem.

2018-12-27 12:45:33
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