摘要
本文除了概述漢唐之間死刑之發展，以明唐代絞斬二等死刑的源流以外，主要是以新發現的《天聖令‧獄官令》為中心，透過唐令與同時期日本令以及其後宋令的比較，探討唐代死刑執行時許多防止冤濫的措施及其變化。
漢唐之間死刑的等級，有自繁而簡的趨勢。唐代乃至中國傳統的死刑，除了剝奪犯人當前的生命以外，有時甚至剝奪其死後的生命。死刑具有懲罰罪人，折辱家族，儆戒眾人的目的，可見死刑的對象非僅限於個人而已。職是之故，死刑遂有等級之差。
唐代為了防止冤濫，死刑執行前訂有覆奏之制。死刑執行時設置監決官，而處決時宣讀罪狀，容許親故辭訣等，都是有效確保避免發生假冒誤決之情事。若死囚冤枉事證明白，更需立即停決。一般而言，死囚都在「市」處決。但對於品官和皇族卻另有優遇，可以絞於隱密或自盡於家。不過若所犯嚴重，皇帝還是會「集眾決殺」，有時更是取消官人優待而刑於兩市。對於特別重大的罪犯，甚至還有一定的示眾儀式，處決路線是宮城→皇城→京城，展示對象是皇帝、鬼神、百官、萬民。從唐宋以及唐日死刑執行法令的比較，可以發現彼此在覆奏制度、死囚監決、屍體的處理、官人和皇族的處決手段等，有著諸多的差異，值得進一步思考。
The main theme is to scrutinize measures taken to prevent a miscarriage of justice in capital punishment in Tang Dynasty compared with Song & Japan based on the newly discovered “Tian Sheng Prison Officer Statutes”
Death penalty not only taken a person’s life when they alive, but also their life in the future in the ancient China including Tang Dynasty. The purposes of capital punishment were used for punishing the criminals, hamper the family’s prestige, as well as deter to the mass. Therefore it was more than a personal issue, and it could also be classified into varies levels.
In Tang Dynasty, to prevent innocent from being executed, the ‘report-check-approval system’ was established before the execution. An officer was appointed to supervise the execution, announcement on the crime committed and the relatives were allowed to bid goodbye with the criminal. All these were used to prevent an unjust charge. If the death criminal was proven to be an innocent, the execution would be paused at once. General speaking, this criminal would be executed in themarket, except those royal family members and government officials who could be executed in private or at home. But for those committed serious offence, the emperor would the officials mass to witness the execution, or abolish their privilege and carry out the execution in market. Some would be sent according to a route [from Palace, to the Royal City and then to the Capital City] to demonstrate to the emperor, gods & devils, government officials and the public before execution.
By comparing the capital punishment system among Tang, Song & Japan, we observe that there are great differences in ‘report-check-approval system’, the arrangement of dead body, the mean of excution for officials and royal family. All the differences above are worth for further studies.
關鍵詞
唐代、天聖令、獄官令、死刑、覆奏
Tang Dynasty、Tiansheng Statutes、Prison Officer Statutes、capital punishment、report-check-approval system