摘要
自四川汶川大地震以來，對相關政府機構問責的公眾輿論方興未艾，然而中國大陸的法律學界與司法實踐卻幾無回應。不過歷史可以啟示現實，中國古人在對地震獨特認識的基礎上有著明確的政府問責機制：地震就是一種由人事禍害導致陰陽失序、四行剋土而「土失其性」的天譴災異，而禍首則主要在於政府的不良統治，從而形成了對統治者予以譴告的天譴理論；天譴論使統治者在以法律措施配合積極救災的同時，更對政府官員進行嚴厲問責，希冀能夠消除地震禍由並保障民生安全。在地震及其破壞依然頻發的現代社會，以古鑒今，反思地震本身作為當然「不可抗力」的觀念，並對因地震而凸顯的政府問責問題進行機制性建構，應該並不過時並且很有必要。
Since the Wenchuan earthquake in Sichuan province, public opinion on the accountability of relevant governments has been in the ascendant. However, there has been little response from the academic community and practice. However, history can reveal the reality that the Chinese ancients had a clear government accountability mechanism on the basis of their unique understanding of earthquakes: earthquakes are a kind of disaster that is caused by the scourge of personnel and leads to the disorder of Yin and Yang. The culprit is mainly based on the bad rule of the government, thus forming a scourge theory against the rulers. While the theory has enabled the rulers to actively provide disaster relief with legal measures, it will also severely hold the government and officials accountable for the goal of eliminating earthquake causes. In the modern society where earthquakes and their destruction still occur frequently, it is necessary to reflect on the idea of the earthquake itself as “force majeure” and to construct the mechanism of government accountability.
關鍵詞
地震、天譴論、不可抗力、政府問責機制、現代啟鑒
earthquake, a theory of heavenly punishment of the rulers, force majeure, government accountability mechanisms, modern reflection