摘要
本文嘗試討論唐律中兩種型態的「無罪」，一種稱為「無罪名」；一種稱為「無罪」。簡單而言，法律對於「無罪」的犯罪，當然是不予科罰，但對於「無罪名」的犯罪，卻不盡然縱放。十三條「無罪名」的犯罪，有五條以無罪論，其他八條雖無罪名，仍作有罪論：或是比照具體條文加減懲處，或是依據律無罪名時的法定處分方式科罰。可見唐律處罰的犯罪非僅形式的犯罪，尚包含有實無名的犯罪。唐律處置「無罪名」犯罪明顯與近代西方刑法的「罪刑法定」原則牴觸。然而，換個方向思考，這些「無罪名」的犯罪卻又是根據成文法條定罪量刑的，似又不可逕稱之為「罪刑擅斷」。透過「無罪名」犯罪的探討，可知唐代（或許包括整個傳統中國）對於律條有限、人事無窮、事態百變的現象是如何因應的。唐律中以「無罪」論處的犯罪，共得四十條。歸納其無罪的理由，分別是（一）並不知情，五條；（二）過失或不能預見的後果，四條；（三）無責任能力，五條：（四）職務上沒有連帶責任，四條；（五）被害人不告，一條；（六）構成要件不足，四條；（七）正當行為或緊急事故，各四條；（八）沒有實害或僅屬微罪，八條；（九）維護更高的價值，三條。
This article discusses two kinds of “Innocent” scenarios under Tang’s legal system. The first type is “the criminal was found guilty but could not name the offence”; the other one is “the criminal was proved not guilty”. In short, no penalty will be imposed on the latter cases. However, criminals of the former one may not be set free definitely. There are 13 ordinances to deal with those criminals of the first scenario, five of them will result in innocent, and another 8 will make the criminals liable for penalty even though no formal names for their offences. Penalty will be imposed according to law or adjusted base on the situation. This indicates that Tang’s legal system covers those genuine criminals even though in some case no formal name for their offence. Such treatment obviously contradicted to the “Nullum Crimen, nulla poena, Sine lege”. However, if viewed from another angle, these criminals were panelized not arbitrarily, but according to law. Through the discussion, we can see how the Tang Dynasty (perhaps including the whole Ancient China) applies the legal principles when facing with limited laws and ordinances for tremendous among of cases under various situations. There are 40 ordinances to deal with those criminals that were proved not guilty under the second scenario. Reasons of not guilty are summarized as (1) The criminal did not know their act was illegal. (2) An error or an unforeseeable consequences. (3) No capability of criminal liability. (4) No joint responsibility. (5) No prosecutions from victims. (6) Without sufficient legalizing conditions. (7) Proper behavior or under emergency situation. (8) No damage or minor offence. (9) Protect higher values. Of all the ordinances resulted in “not guilty”, 5 cover “the criminals did not know their act was illegal”, 4 deal with “an error or an unforeseeable consequence”, 5 link with “no capability of criminal liability”, 4 group under “no joint responsibility in position” and 1 related to “no prosecutions from victims”, 4 ordinances cover “without sufficient legalizing conditions”, 4 deal with “proper behavior or under emergency situation” respectively, 8 link with “no damage or minor offence”, and 3 related to “protect higher values”.
關鍵詞
唐律、無罪、無罪名、罪刑法定、犯罪
Tang Code、not guilty、guilty but could not name the offence、Nullum Crimen、nulla poena、Sine lege、crime