摘要
漢文帝刑法改革詔的解讀深受制度背景的影響，歷代注釋家多忽視不同時代下的制度背景之不同，造成對改革詔的種種誤解。小文則以秦及漢初律的制度背景為依據，重考改革詔的法律涵義。 相關分析從改革詔和「復作」與「赦」的雙層關聯受到啟示，將改革詔原文與有關「復作」的歷史記載探討比較，得到如下結論：「復作」有三大特徵，即（一）「復作」一詞表示再次服役之義；（二）「復作」指「常赦」後刑徒所從事的勞役；（三）最晚在西漢後期「復作」有固定的服役期限。文帝改革詔規定「城旦舂」、「隸臣妾」等刑徒逐步轉換為「鬼薪白粲」、「隸臣妾」、「司寇」，並以「鬼薪白粲」等身份重新服役若干年，這與「復作」的特徵完全一致。因為「復作」在惠帝以前已出現，可以歸納出如下歷史演變：秦律的「城旦舂」、「隸臣妾」等刑罰原係「身份刑」，在「身份刑」轉換為魏晉新律所見有期徒刑的過程中，曾經產生一種因逐步赦免刑徒身份而間接中止服役的過渡性辦法。其中，「復作」則指赦免之後以新的刑徒身份重新所從事的勞役，而刑法改革對復作制度進行調整，決定逐步赦免的途徑和復作的服役期限。在東漢律學的知識體系中，逐步赦免的制度被重構為有期徒刑。魏晉新律將其採納之後，這才成為了中國法律史上第一個正刑體系中的有期徒刑。
The text of the legal reform decree of the Han-emperor Wen as preserved in the Legal treaties of the Han-Annals has been misrepresented
and misconceived for several times. First, Ban Gu squeezed the decree into the context of the political debate on restoration of mutilating punishment at the beginning of the Later Han, misleadingly putting emperor Wen into the role of the great reformer who abolished mutilating punishment. Next, Yan Shigu and probably other precedent commentators raised new questions on the terms of penal servitude, centered on the question how many years of hard labor「(gatherers of) firewood for the spirits (guixin 鬼薪)」 had to serve. In fact,「(gatherers of) firewood for the spirits (guixin 鬼薪)」 used to be merely a commutation for the「wall builders (chengdan 城旦)」 in the penal system of the Qin and the early Han, and the search for its term of servitude in the reform decree had been stimulated by the recomprehension of penal servitude by the legal school of the later Han. In Addition, the question of servitude terms has been put under completely different light again since Gao Heng discovered that under the Qin penal servitude did not have fixed terms. After this discovery, the reforming role of emperor Wen has been often comprehended as to have introduced determinable servitude. However, the introduction of determinable servitude does not fit with the original text of the reform decree.
This paper undergoes a reexamination of the text of the legal reform decree of the Emperor Wen and the historical sources concerning the
institution of「 Serving again (Fuzuo 復作) 」 . Based on this reexamination, we will state that there had been a transitional form of terminating penal servitude through stepwise pardoning between penal servitude without fixed terms in the Qin and determinable servitude in the new codices of the Wei and Jin.「Serving again (Fuzuo 復作)」 refers to the part of servitude which is imposed after the process of partial pardoning, in a very similar manner before and after emperor Wen’s legal reform. The impact of the legal reform on penal servitude was limited to the regulation of the timetable of stepwise pardoning. The legal school of the later Han conversed stepwise pardoning into a concept of determinable servitude, and the new codices of the Wei and Jin embedded this new concept for the first time into statutory law. In other words, the legal institution of determinable servitude has come into existence about 4 centuries later than considered formerly.
關鍵詞
復作、文帝刑法改革、身份刑、有期徒刑、秦律、魏晉新律、東漢律學
Serving again、the legal reform of Emperor Wen、penal status degradation、penal servitude、Qin law、the new law code of Wei and Jin、legal school of the Eastern Han