摘要
唐代贖刑制度，可以分成身分特權贖、身體因素贖以及犯罪事 實贖三者討論，其適用條件、排除罪刑各有不同。而唐代贖刑中， 十惡是否可以用贖這個問題，有許多先輩學者論及，但卻仍有值得探討的空間。 首先，議、請、減、贖這四條攸關官人官親法律殊遇的律文， 其性質與書寫邏輯相同。而在議、請、減三條中，皆有明文排除十 惡犯罪的適用，唯獨贖條未有論及，似可推論在唐代贖刑中，並沒有排除十惡適用的通則性規定。其次，《唐律疏議．名例律》「五 品以上妾有犯」條（總13條），先言五品以上官員之妾犯非十惡才 可論贖，之後又提到在《唐律疏議．名例律》「應議請減（贖章）」條（總11條）不合贖者，也不在五品以上官員之妾論贖之 限，可見「應議請減（贖章）」條中不合贖的罪名，並不包含十惡，所以才需要分開解釋。最後，在《唐律疏議．名例律》「老小及疾有犯」條（總30條）更明言十惡犯罪「有不聽贖處，復有得贖之處。」顯見並沒有十惡一律不得論贖的規定。 至於十惡罪之中有哪些罪名可贖？哪些罪名不可贖？謀反、謀大逆、謀叛、惡逆四者罪刑，皆屬被贖條排除的死刑及「反逆緣坐流」，故不可贖。其他如不道罪中的「造畜蠱毒」屬「會赦猶流者」；不孝中的「為求愛媚厭祖父母、父母」以及「聞祖父母、父母喪匿不舉哀」屬「不孝流」，亦在贖條中排除適用。至於未被贖 條排除的罪名，分別見於不道、大不敬、不孝、不睦、不義及內亂之屬。這些可贖的十惡犯罪大都是一些在道德上應被強烈譴責，但 卻是實害較輕的犯罪。雖然從現實狀況考量，這些實害較輕的罪刑，並不適於處以重刑，甚至能夠以贖代之，但是透過十惡之條， 卻可以給犯罪者安上罪大惡極之名，以作為道德之譴責，實為《唐律》在禮、刑之間所取得的平衡點。
The redemption system in Tang dynasty consists of Status privilege Redemption, Physical factor redemption and Crime redemption, each with different conditions and penalties to apply to. In the redemption system in Tang dynasty, it has been discussed but still left space to further explore that whether the redemption system can be apply to Ten Abominations. We can break it into three divisions to discuss according to the related laws. Firstly, we can start with the four laws of Negotiation, Intercession, Reduction and Redemption and the special treatments for government officials and their relatives. The essence of the four laws is the same as their writing logic. After comparison, it is specifically stated that the laws of Negotiation, Intercession and Reduction can not apply to Ten Abominations. Since the law of Redemption has not mentioned the application, it can be deduced that there is no general regulations to rule out its application to Ten Abominations. Secondly, referring to Ming Li of Tang Code, it states, “Once the concubines of officials above the fifth rank commit Non-Ten Abominations or crimes beneath the crime of exile, Redemption could apply to them. They would not be limited to the redemption system if the redemption could not suit them.” It expresses Redemption can only apply when the concubines of officials above the fifth rank commit Non-Ten Abominations. Then it further states in The Laws of Negotiation, Intercession and Reduction-Redemption, those who could not suit the law of redemption would not be confined to the redemption for the concubines of officials above the fifth rank. The crimes that could not be applied to Redemption exclude Ten Abominations. Hence the separate explanation is needed. Lastly, according to the regulation “When criminals are senior, underage or diseased” from Ming Li of Tang Code, it verifies one can be redeemed after committing Ten Abominations in Tang dynasty. A dialogue in it has mentioned “In the former law, Redemption can apply to some of Ten Abominations but not all.” The former law here refers to The Laws of Negotiation, Intercession and Reduction-Redemption. From “Redemption can apply to some of Ten Abominations but not all”, we can deduce some crimes from Ten abominations can be redeemed. There is no rule on non-redemption for all Ten Abominations.
As for which crimes from Ten Abominations can be redeemed and which not, it requires comparison of the crimes excluded from the law of Redemption. If the crime from Ten Abominations is excluded from the law of Redemption, then Redemption would not suit the crime, and vice versa. The four crimes from Ten Abominations- plotting a rebellion, planning great betrayal, plotting treason and evil disobedience are all death penalty excluded from the law of redemption, and the criminals’ relatives would receive collateral punishment of exile. These four crimes are unredeemable. Other crimes such as “poisoning with venomous insects” from the crime of immoral behaviors would not be lessened under an amnesty and the criminals would be exiled. “Mesmerizing or harming one’s grandparents and parents in order to woo” and “not mourning properly after one’s grandparents or parents are dead” from the crime of lack of filial piety are also excluded from the law of redemption. Above are those from Ten Abominations that are unredeemable. Those from Ten Abominations that can be redeemed, therefore not excluded from the law of redemption can be seen in the crimes of immoral behaviors, great irreverence, lack of filial piety, improper behavior, unrighteous behavior and incest. These redeemable crimes from Ten Abominations cause less actual harm but should be severely condemned in a moral sense. Considering from a reality perspective, these crimes that cause less harm would not suit severe punishment and can even be replaced with Redemption. However, through the law of Ten Abominations, it can title the criminals with a heinous name as moral condemnation, which represents the balance between etiquette and punishment stricken by Tang Code.
關鍵詞
十惡、重罪十條、贖、議、請、減
Ten Abominations, Negotiation, Intercession, Reduction, Redemption
