摘要
本文探討宋代獄訟結案的程序，歸納「檢法擬筆」相關 的法規及要件，分析斷由與擬筆的作用與訴訟風氣，進一步 考察地方行政官僚的審判方式、職能，從中瞭解行政官僚的 司法業務及其角色。
宋代獄訟判決最後一道程序，稱為「結絕」。不論刑獄 或民訟的結案，都必須交付當事人一件具備「情與法」的判 決文。官員書寫判決時，可以透過行政作業，取得歷來相關 的「擬筆」，作為結絕的重要參考。如果案涉入獄推鞫，獄 官的擬狀和法司的檢斷皆屬擬筆文書。而獄官的鞫狀只能書 寫入獄者的口供，不可預設事狀招供；法司的檢擬則必須具引與事狀相關的法令條文，但不可妄下判斷。與其說宋代的 判決是由「檢法官」協助讞罪，不如說各部門中「擬筆官」 的看法，更有助於審判官員的結絕斷案。
宋代以下，中國民間社會爭訟頻繁，官府並未採取科罰 的處理態度，反而在受詞追證程序上改進，朝向有「理」可 循的發展，當人民愈發流行以投牒告狀解決紛爭，因而產生 若干互動性的審判制度。南宋高宗以後，朝廷規定「婚田差 役」一類的訴訟必給「斷由」。斷由相當於重罪「議法斷 刑」的讞狀，亦即某一衙門的結絕判語。審判官員結絕時， 受「斷罪引律令格式」的法律制約，亦即針對犯罪事實，必 須援引相關法條。宋朝法律多如牛毛，「戶婚差役」案件的 審理，並非以懲罰為最終目的，國法也不是用來支持審判官 員科刑而已。因此，宋代地方衙門為了因應健訟風氣，避免 行政錯失，於是加強「檢法擬筆」的機制。
就「檢法擬筆」的作用而言，一是優秀的擬筆者檢用法 令，會將儒學經典發揮於法意運用。二是擬筆者僅能查錄法 條，不能做斷刑處分。三是反覆釐清案情，擬出若干處置情 況，提供長官定奪。四是擬判重點不在於定罪，而是注重案 情分析，並且提供證據與法理充分的意見。五是檢具「不受 理法條」，阻止健訟者「不應為」的妄訴行為。
地方幕職州縣佐官處理「獄訟」時，連帶負責「檢法擬 筆」職能。各級地方衙門 倘 能要求屬官到公廳 「集眾較量」，有助於議斷疑案，解決滯訟。在宋代官制設計中，訂定「檢法擬筆」原則，促使地方官僚歷經各種審判程序的訓 練，有助於提升地方知州、縣令等長官的素質。「檢法擬 筆」的規範也影響了縣衙吏人的職能趨向專職、分工化。固然宋代的吏治中，有墮落的官員，還有胥吏管理問題叢生， 但是「檢法擬筆」的實施，應是宋代法制發展史上，不可忽 略的一環節。
This article investigates the procedure of settling a lawsuit and the function of court verdicts and judgment drafts as well as the practice of litigations by analyzing the legal documents pertaining to the system of “jianfa nibi” (Citing Enactments to Draft Judgment Texts) in Song Dynasty. This article also examines the local administrative bureaucrats in terms of their role and function in handling judicial cases.
The final procedure of handling legal cases in Song Dynasty was called “Jiejue,” in which the officials concluded a verdict by taking human sympathy and laws into account. When rendering the verdict of both criminal and civil cases, the officials would consult all past related judgment drafts as references. If imprisonment was involved in an inquisition by torture, both prison officers’ interrogations and judges’ prosecution reports were regarded as “judgment drafts.” Theoretically the previous recorded only prisoner’s affidavit without being adulterated with guided confession, and the later cited applicable laws and decrees without being compromised by personal opinions. In this regard, the settlement of a lawsuit in Song Dynasty relied heavily upon the opinions of thee “legal drafters” from all departments rather than the judgments of judicatory officials.
Though the exercise of litigation appeared booming in Chinese society since the Song Dynasty, the government didn’t invoke penalty to prevent it. Instead, the government endeavored to improve legal procedures and nomological reasoning. Consequently the conditions of people tending to solve their disputes by means of lawsuits became several interactive judging systems.. After Emperor Gaozong of Southern Song, the Court stipulated that the court verdicts should be provided on disputes pertaining to marriage, grounds, and employment. Court verdicts equal to the count of the felony: “Resolving Laws to Sentence”, namely a judgment wording of settling a lawsuit at certain district Yamens (the government offices).In order to conclude a verdict, judges were required to quote related enactments according to corpus delicti. However, as innumerable as the enactments in Song Dynasty were, the purposes of judging cases such as marriage, grounds, and employment weren’t aiming at penalty, and even the national laws were not merely supporting judge officers to sentence. In order to prevent litigiosity and administrative errors as well, the system of “Citing Enactments to Draft Judgment Texts” was thus put into practice in the local Yamens.
As far as the function of “Citing Enactments to Draft Judgment Texts” to be concerned, ideally efficient drafters would citing and elaborating related arguments from the Confucian classics. Drafters could only consult the laws, and have no right to conclude verdicts. They should instead examine every detail of the cases and offer solutions to all possible scenarios for their superiors to decide. The key function of the draft judgment was, instead of concluding a verdict, to provide analysis of the cases with all nomological considerations. Last but not least, the complaint-rejected ordinances could be used to prevent litigiosity.
Local officials like prefects and county magistrates also took charge of the exercise of “Citing Enactments to Draft Judgment Texts” while dealing with criminal and civil cases. It was helpful for the officials of local Yamens to gather their subordinates and deliberate together on those doubtful and disputed cases. The practice of “Citing Enactments to Draft Judgment Texts” could help training local officials by going through these legal procedures and therefore enhance their ability as local prefects and county magistrates. Arguably such practice also resulted in specialization and departmentalization of the local governments. To sum up, even though there have always been management problems of corrupt bureaucrats and petty officials, the practice of “Citing Enactments to Draft Judgment Texts” was, by any means, an essential part that could never be overlooked in the development of legal systems in Song Dynasty.
關鍵詞
斷由、檢法擬筆、鞫讞、脫判、不受理法條
Court verdict, Drafting judgment texts referring to enactments, To interrogate and adjudicate, False court verdict, Complaint-rejected ordinance