乱世与法制:五代后晋的刑事立法、司法及其承启性(下)  

The Chaotic Time and The Legal System:Criminal Legislation,Criminal Judicature and Connecting Function of the Later Jin Dynasty of the Five Dynasties Period(part Ⅱ)

作　　者：谢波[1] Xie Bo

机构地区：[1]重庆警察学院法学系

出　　处：《交大法学》2019年第2期105-119,共15页SJTU Law Review

基　　金：2017年国家社会科学基金项目"宋元断例辑考"(项目编号:17ffx011)的阶段性成果

摘　　要：五代是介于唐宋之际的藩镇割据乱世,长期以来无法、滥刑成为定论五代法制之主流观点。然爬梳分析史料,情状并不完全如此,位居五代中段的后晋在刑事法制建设上就颇有建树,主要体现在:在立法方面,开展了三次规模较大的法律活动,官员也表现出一定程度的议法热情;在司法上,虽然存在滥刑的一面,但却不乏滥刑纠偏和循法慎刑的案例;数次赦宥显示了皇帝的宽仁之心,当然赦宥也引发了个别朝臣驳议。以上这些表明,汉代以来逐步形成的儒化法制在五代乱世中尽管受到践踏冲击,但并未发生完全断裂,仍在曲折传承发展。同时,五代法制在唐宋时期展示出独特的承上启下属性,这种承启性在后晋乃至五代刑事法制中得到具体反映。乱世中的五代法制具有丰富、多维、复杂的面向,而不可简单以无法、滥刑概括之。The Five Dynasties Period was the chaotic time under conditions of rival principalities separatism between the Tang and Song Dynasties,and no law or excessive punishment became the mainstream view regarding the legal system of the period for a long time.However,through the analysis of historical data,the situation was not exactly like this.The Later Jin Dynasty which was in the middle of the Five Dynasties fruitfully constructed the criminal legal system actually.The contribution is primarily reflected in the following aspects.Firstly,in the field of legislation,three large-scale legal activities were carried out,and the officials showed enthusiasm for law discussion.Secondly,in the field of judicature,although there was excessive punishment,there were also cases of rectification and prudent punishment on the basis of law.The several general amnesty which led to the refutation from the individual official reflected the emperor’s forgiveness.All above indicate that the Confucian legal system which was gradually formed since the Han Dynasty was trampled in the Five Dynasties Period which was the troubled time,but it was not broken completely,and it was still inherited and developed circuitously.Meanwhile,the legal system of the Five Dynasties Period showed the unique function of connecting the Tang and Song Dynasty.The function of connection was reflected in the content of the criminal legal system in Later Jin Dynasty and Five Dynasties Period.In the troubled time,the legal system of the Five Dynasties Period had the rich,multidimensional and complex characteristics,but it can’t be summarized simply as no law or excessive punishment.

关 键 词：五代后晋 唐宋 刑事法制 承启性 

分 类 号：D929[政治法律—法学]