摘要
傳統中國法，有兩個系統性的法規可以輕易地跨越不同部門的立法，多能與其參照適用，一個是刑罰的五刑體系，一個是以贓計罪的贓罪體系，本文利用這兩個體系的相互發展來考察元代法制的發展過程，觀察元代是如何繼受這個唐宋舊律的觀念，逐步建立自己的贓罪系統。
贓罪有一特性，必須有足夠的刑罰框架，以及建立計算財貨價值的基準單位，方能有效設計及運作，可見需有一定的立法水準方能完成立法。職是之故，本文先說明至元初廢《泰和律》之前金元之際的刑制與贓罪的來源，接著再推演世祖至元末如何決定計贓單位，並逐步創制元代自己的贓罪系統，成宗大德年間（1297-1307）如何在世祖基礎上，建立元代的新五贓：枉法、不枉法、強盜、竊盜、侵盜錢糧贓罪系統。討論完有系統的贓罪，也要兼及元廷時常使用卻不成一系統的「不應為」計贓用的現象，進而說明為何元代沒有發展出如唐宋律般的「坐贓」計贓罪名。最後觀察《明律》「六贓」罪是受到多少元制的框架所設計出來，及其設計之弊病為何？
In traditional Chinese law, two systematic legal frameworks were capable of transcending departmental boundaries and were frequently referenced across various legislative domains: the Five Punishments system and the property crime system based on the valuation of illicit gains. This paper examines the development of Yuan-dynasty legal institutions through the interplay of these two systems, with particular attention to how the Yuan inherited conceptual foundations from the Tang and Song legal traditions and gradually established its own framework for property-related offenses.
A defining feature of property crimes is their reliance on a robust penal structure and the establishment of standardized units for calculating the value of goods. These prerequisites are essential for the effective design and implementation of such laws, indicating that a certain level of legislative sophistication is required. Accordingly, this study first explores the origins of penal and property crime systems during the Jin-Yuan transition, prior to the abolition of the Taihe Code (Taihe Lü 泰和律) in the early part of the Zhiyuan 至元 era (1264-1294). It then traces how Kublai Khan 忽必烈 (r. 1260-1294), from the beginning to the end of the Zhiyuan period, determined the units for calculating illicit gains and progressively formulated the Yuan dynasty’s own system for dealing with property-related crimes. During the Dade 大德 era (1297-1307) under Emperor Chengzong 成宗 (r. 1294-1307), the Yuan established a new categorization, known as the Five Property Crimes—those involving the abuse of law, those not involving an abuse of law, robbery, theft, and embezzlement of public funds—building upon the foundations laid by Kublai.
Beyond the systematic categorization of property crimes, this paper also addresses the Yuan court’s frequent yet unsystematic use of the “acts that should not be committed” category in calculating illicit gains. It further explains why the Yuan failed to develop a “sitting for stolen property” offense akin to those found in Tang and Song legal codes. Finally, the paper evaluates the extent to which the “Six Property Crimes” in the Ming Code were influenced by Yuan legal frameworks and identifies the structural deficiencies inherent in their design.
Beyond the systematic categorization of property crimes, this paper also addresses the Yuan court’s frequent yet unsystematic use of the “acts that should not be committed” category in calculating illicit gains. It further explains why the Yuan failed to develop a “sitting for stolen property” offense akin to those found in Tang and Song legal codes. Finally, the paper evaluates the extent to which the “Six Property Crimes” (Liu zang 六贜) in the Ming Code (Ming Lü 明律) were influenced by Yuan legal frameworks and identifies the structural deficiencies inherent in their design.
關鍵詞
六贓、贓罪、《元典章》、《至正條格》、《明律》、《唐律》
Six Property Crimes, property crimes, Yuan dianzhang (Statutes and precedents of the Yuan dynasty), Zhizheng tiaoge (Statutes of the Zhizheng period), Ming Code, Tang Code
