摘要
首先，本論文探討唐宋職制律的法典位階，解析唐宋法典編排的思維與格局之轉變脈絡為何？《唐律》〈職制律〉可分三大類、總共有59條，包括針對官員違犯皇帝人身意志、違犯朝廷規定和官僚個人道德違犯公務處置。《宋刑統》照抄《唐律》而增加「門」的編排方式，調整條數並集中分類，其中增加令敕、格敕條，則意謂經濟發展的變化。《宋會要輯稿》的職制律，將攸關全國的經濟問題，列入食貨史料中。《慶元條法事類．職制門》一至十完好無缺，而且有相當數量散見於各門職制法令，尤其殘存敕和敕申明占1/4至將近1/3，顯見皇帝旨意法條化趨勢。 再者，透過宋代生祠立碑記與吏職變化，思考「職制司法」與儒家精神實踐之關聯為何？就儒學官僚的守法而言，宋代「生祠」必定依附在「立碑」的法令下，雖然建造德政碑逐漸喪失唐代與考課法結合的功能，但語彙運用卻反映宋代官員表達職責所在與自我要求的態度，建碑過程更顯示地方官執法分寸與守法技巧。就儒家司法的公平原則而言，宋代為達到獄訟無冤的理想，鞫讞分司是重要程序。地方衙門與審判相關的公吏工作必須井然有序，於是官箴中重視御吏之道，朝廷新制則促成縣衙獄訟胥吏邁向專職化。 本論文以奉行儒家思想的官僚群體為研究對象，分析唐宋職制律的變動，以及探討司法實例的審判原則，從而觀察儒家官員法治實踐與限制。
This article first discusses the hierarchy of Administrative Regulations and Precepts of the Tang and Song Dynasties, analyzing the arrangement
of Tang and Song Code and tracing the context for changes in structure and scale. The Administrative Regulations and Precepts in the Tang Code
contain 59 articles and can be divided into three categories, dealing with situations when government officials disobeying emperor’s order, defying court rules, and personal ethics interfering with public affairs. The Criminal Law of Song Dynasty (song xing tong) mainly copied Tang code but added the entry of “section” (men), modifying the total number of the articles and rearranging the categories. Among these changes, adding the “authoritative order”and“imperial edicts”implies the economic development and transformation of the society during that time. Moreover, the Administrative Regulations and Precepts in the Song Dynasty Manuscript Compendium (song huiyao jigao) included the nationwide economic issues in its foods and commerce historical material section. The complete text of the total ten sections of the Administrative Regulations in the Law Code of the Qingyuan Reign (Qingyuan tiaofa shilei) are preserved in good condition to the present day, and a certain amount of articles can also be found in other administration regulations and precepts, especially the existing authoritative orders and order declaration which account for one fourth to one third of the total portion. This shows the legislation of emperor’s order became a tendency to expand.
In addition, the records of commemorative shrine and stele in the Song Dynasty and the changes of government official posts indicate the mutual influence between administration law and practice of Confucianism. According to Confucian officials’ legal principle in the
Song Dynasty, the regulations of commemorative shrine must be subordinate to the law of commemorative stele. Though building shrine for virtuous government gradually lost its joint function with inspecting achievements system as it did in the Tang Dynasty, the vocabulary used in
the records reflected how government officials held responsibility and selfdisciplined attitude in the Song Dynasty, and the process of building stele
demonstrated local official’s principle when enforcing the law and their strategy to adhering to the law. The Confucian equity reinforced the ideal
at that time, which means no miscarriage of justice, helping establish the system to separate responsibility of interrogation from adjudication. To
insure the order of local court and related works, the doctrine for attendant officials in official admonitions became more and more important, and the new law made by the central court encouraged the petty officials who were in charge of the lawsuit at local government became full-time positions.
This article focuses on both the government officials who pursued Confucianism and the changes of administration regulations and precepts
of the Tang and Song Dynasties. By observing the Confucian government officials’principle and judicial practice, it enables us to examine the
standard of judgment from actual judicial cases.
關鍵詞
職制、司法、審判、獄訟、公吏、親民官
administration regulation、justice、trial、lawsuit、government official、parental official