宋例新探  

A New Analysis on the"Li"in Song Dynasty

作　　者：吕志兴[1] 曾友林 Lv Zhixing;Zeng Youlin

机构地区：[1]西南政法大学行政法学院,重庆401120 [2]西南政法大学,重庆401120 [3]广东省深圳市龙岗区人民法院,深圳518172

出　　处：《复印报刊资料（法理学、法史学）》2017年第9期85-94,共10页JURISPRUDENCE AND HISTORY OF LAW

摘　　要：在中国古代,例的基本含义有二:一指判例或先例,此乃本源之义;一指法律原则或规定,多用于法典、制敕中。宋代以例为构词元素的法律术语多从第一义项,除条例、则例外,大多指判例、先例和惯例。宋例与制定法的关系是“法所不栽,然后用例”,是制定法的辅法,在法律体系中位阶最低。但惟常例(判例、先例)和惯例性质的例才是制定法的辅法,是法律渊源,而优例则否。宋例虽备受批评,但因其具有补制定法之不足的功能及简便、风险小等优点,在实践中被大量援用,其实际地位比较高。In ancient China,the term had two basic meanings:one referred to a precedent or an ordinance;the other referred to legal principles or rules.The former was the original meaning and applied to most legal items in Song Dynasty,except regulations;the latter was the frequently-used meaning in the codes and decrees.There was a legal proverb that could describe the relationship between "li" and the statute law:"If there was no relevant provision in codes,"li" would be invoked."In a word,"li" was subordinate to the statutes and the lowest rank in legal system.However,it should be pointed out that "li" was a sub-statute and a source of law,only in terms of precedent or practice.In fact,“li”was frequently invoiced and played an important role in Song Dynasty,despite suffering strong criticisms.Because "li" could supply deficiencies of statutes and had some advantages,such as convenience,low risk.

关 键 词：宋例 判例 先例 惯例 法律渊源 

分 类 号：D92[政治法律—法学]