摘要
《唐律》所謂因人以致罪，是指由於他人犯罪而連累獲罪者，包括藏匿罪人，或過致資給及保、證不實等三大類。在「犯罪共亡捕首」（總38條）中，則規定罪人如果自死、自首或遇赦，所受連累罪的保人亦得隨之免予處罰或減輕處罰。易言之，如同「保人不如所任者」（總386）指出隨罪人而得罪者，故與罪人「同坐」、「同罪」或「減所保罪人罪二等」。在「赦書到後百日」（總35條）中，又指出「見在不首，故蔽匿者，復罪如初」，不過「賣買有保，既經赦原，無問百日內外，雖不自首」，不必坐罪。由於《唐律》將保人視作非正犯，因此得以不受處罰。 唐代的訴訟過程中，究竟在哪些場合需要保人呢？保者既關於犯罪，就有保他人無犯罪事實，及保他人不逃避，甚至訟結之後的取結，有保其不再為非。就官吏犯罪而言，原來任官的推薦保人應承受何種罪罰，以及「責保停務」又是如何實際操作呢？就百姓而言，嫌疑犯被杖拷滿二百數而不認罪時，也要取保；犯徒流的罪人若有保者，則可以脫掉盤枷刑具，當犯罪事實明確的犯人申請保辜時，如何尋求適當保人，以便外出對被害人進行照料呢？在各種案類中，保人的罪罰果然如刑律所言，僅僅處以減罪人二等，抑在遞送保證的文書時，另附有其他申明加重刑罰的文字呢？ 本文從《唐律》中所見保人的刑罰著手，分析保人在法令中的性質及案件類型；並進一步搜集唐代保人相關文書之史料，對比法令的規範，深入了解唐代的保人角色，最後嘗試分析保人的來源，觀察保人和犯罪人的關係，以及保人成為唐代社會安全保障一道防線的可能性。
The Tang Code defines “guilt-by-association” as crimes resulting from other people’s illegality, including crime of shielding, crime of providing help to criminals, and crime of perjury. In the regulation “the surrender for accomplice who informs against or kills the principal offender,” the Tang law specifies that if a criminal commits suicide, chooses voluntary surrender, or is granted pardon, the people who are sentenced to judicial penalty due to “guilt-by-association” could also be commutated. In other words, this situation can be compared to that “the guarantor shall face the legal consequences of any false statements or failure to meet the aforementioned obligations.” Therefore, since “guilt-by-association” was a result of others’ illegality, the guarantor’s sentence and commutation are also correlated. The regulation “One Hundred Days after Being Granted Pardon” describes that even a criminal is granted pardon, the criminal still has to give him/herself in within the framed one hundred days; if the criminal fails to do so, then the pardon will be revoked and the criminal has to serve the sentence as originally adjudicated. However, the Tang law also specifies that this regulation does not apply to the guarantor when “a person who becomes guilty due to being guarantor for trades, once the person is granted a pardon, he/she does not have to give him/herself in within the framed one hundred days.” Therefore, even the framed one hundred days passed, the guarantor is not guilty anymore. This exception was made due to the guarantor was not considered as principal offender in the Tang Dynasty, so the guarantor would not be punished accordingly. During the process of legal disputes in the Tang Dynasty, in which situations was the guarantor required? Since this kind of guarantor specifically posted bail for the insured person’s legality, the guarantor had to ensure that the insured person was innocent and would not flee; further, the guarantor had to consider how the bail would be posted after the case was closed, which implies that the insured person would never commit illegality. As for the government officials’ case, what punishments would the government officials’ guarantors receive and how “guarantor takes responsibility under suspension from duty” was actually practiced? For civilians, when the defendant did not plea guilty after receiving punishment of flogging (beaten by wooden staves) two hundred times, the civilian defendant was obliged to have a guarantor. If a prisoner who had banishment in order could find a guarantor, the prisoner could take off handcuff on the way to destination. When an offender applied for the victim protection institution (the system of grace allowed to offenders for the purpose of awaiting their repentance shown and efforts made to rescue the wounded or the dying on which to base the measurement of penalty), how could the offender find a proper guarantor so that the offender could be released from prison temporarily to take care of the victim? In the variety of cases, whether or not that the “guilt-by-association” guarantor, as the Tang code regulated, was only sentenced to punishment “two times lighter than the insured person,” or is it that there were any heavy penalty imposed when submitting the guarantee document? This article investigates the penalty of guarantor listed in the Tang code, analyzing the role of guarantor in regulations and legal cases and further collecting related documents and records about guarantor in the Tang Dynasty. By comparing with each regulation, this research hopes to gain a fuller understanding of the role of guarantor in the Tang Dynasty, and finally to study the origin of guarantor, to examine the relationship between the guarantor and the insured criminal, and whether or not the guarantor constitutes as a protecting wall for the society in the Tang Dynasty.
關鍵詞
唐律、因人致罪、保人、保任、保證、取保、責保、保辜
Tang code、 guilt-by-association、 guarantor、 guaranteed sponsorship、 guaranteed a person's morality、posting a bail、the bail pending trial、victim protection institution ( the system of grace allowed to offenders for the purpose of awaiting their repentance shown and efforts made to rescue the wounded or the dying on which to base the measurement of penalty )
