律令法体系向律例法体系的转换  

On the Transfer from the System of Statutes and Decrees to the System of Statutes and Cases

作　　者：刘笃才[1] 

机构地区：[1]辽宁大学法学院

出　　处：《法学研究》2012年第6期178-187,共10页Chinese Journal of Law

基　　金：其主持的国家社科基金2012年度重点项目"明清事例研究"(项目批准号12AFX003)的阶段性成果

摘　　要：律令法体系对于分析中国古代法制史是一个重要概念,如果与律例法体系的概念相互配合将会对研究工作更加有利。战国秦汉至隋唐时期的法体系以律与令为主体,是为律令法体系。明清时期例与律成为法体系的主体,可以名之为律例法体系。律例法体系取代律令法体系是中国古代法制的重要发展。两者的转换使得法律史上长期积累起来的一些矛盾得到了解决。It has been a consensus in the circle of legal history that the system of statutes and decrees is an important concept. The system of statutes and decrees is a legal system mainly consisting in Statutes and decrees. It existed in the period of Zhangguo, Qinhan, Weijin, Sui and Tang Dynasties in ancient China. After the development in Song and Yuan dynasties, statutes and cases became the main components of the legal system, hence the system of statutes and cases. The collaboration between the two-the system of statutes and decrees and the system of statutes and cases-is very useful in analyzing the historical evolution of the ancient Chinese legal system. The fundamental cause of the transfer from the system of statutes and decrees to the system of statutes and eases is that the law must meet the huge socio-economic changes occurring in Tang and Song dynasties. The transfer is a three-folded story. First, the transfer was a long and complicated process, during which cases initially considered as alien things were recognized and absorbed into the legal system, and ＂grew barbarically＂ under the specific historical conditions. Secondly, traditional legal system began to change dramatically and decline from the peak of prosperity. Finally, cases gradually absorbed ＂decrees＂. It is an important development in ancient China that the system of statutes and cases replaced the system of statutes and decrees. Statutes were the main form of law while cases were eomplementary. This structure not only adapted to the contemporary economic and social system, but also properly solved some contradictions accumulated in ancient Chinese legal system： it helped to resolve the contradiction between the simpleness and complexity of legal forms, coordinate conflict between sentiment and law in the judicial process, and promote the combination of reason and experience in the legislative process.

关 键 词：律令法制 律令法体系 律例法体系 

分 类 号：D929[政治法律—法学]