明代典例法律体系的确立与令的变迁——“律例法律体系”说、“无令”说修正
发布时间：2019-07-06 17:41
【摘要】：传统的明代"律例法律体系"说、"无令"说应当修正。明代建立的新法律体系是按照"以典为纲、以例为目"的框架构建的,应总称或简称为"典例法律体系"。"律例法律体系"说忽视了《明会典》系"大经大法"和洪武年间颁行的《大明令》等十一种法律并非刑事法律这一基本史实,因而失之偏颇。明初在变革传统律令法律体系时,把单行"令"的称谓变换为"事例",二者名异而实同;《大明令》不仅在明开国后百余年间被奉为必须遵行的成法,即使正德、万历两朝《明会典》融《大明令》入典后,其有效条款仍在行用;明人以诏令颁布国家重大事项、把"制例"称为"著为令"的传统,直至明末未变,所谓"明代无令"说不能成立。
文内图片：
图片说明：正德《明会典》颁行后明代法律体系构成图
[Abstract]:The traditional law legal system of Ming Dynasty said that the theory of "no order" should be amended. The new legal system established in Ming Dynasty was constructed according to the framework of "taking canon as the outline and taking examples as the purpose", which should be called "legal system of examples". The theory of "legal system of laws" ignores the basic historical facts that eleven kinds of laws, such as "Dajing Dafa" and "Daming decree" promulgated by Hongwu during the Ming Dynasty, are not criminal laws, so they are biased. In the early Ming Dynasty, when the legal system of the traditional law was changed, the appellation of the single line "order" was transformed into "case", and the names of the two were the same. "Daming order" was not only regarded as a method that must be followed for more than a hundred years after the founding of the Ming Dynasty, but even after Zhengde and Wanli's "Ming Dynasty canon" were incorporated into the code, its effective provisions were still in use. The Ming people promulgated the important matters of the state by imperial edict, and called "making legislation" the tradition of "writing as order". Until the end of Ming Dynasty, the so-called "Ming Dynasty without order" said that it could not be established.
【作者单位】： 中国社会科学院法学研究所;
【分类号】：D929
本文编号：2511215
文内图片：
图片说明：正德《明会典》颁行后明代法律体系构成图
[Abstract]:The traditional law legal system of Ming Dynasty said that the theory of "no order" should be amended. The new legal system established in Ming Dynasty was constructed according to the framework of "taking canon as the outline and taking examples as the purpose", which should be called "legal system of examples". The theory of "legal system of laws" ignores the basic historical facts that eleven kinds of laws, such as "Dajing Dafa" and "Daming decree" promulgated by Hongwu during the Ming Dynasty, are not criminal laws, so they are biased. In the early Ming Dynasty, when the legal system of the traditional law was changed, the appellation of the single line "order" was transformed into "case", and the names of the two were the same. "Daming order" was not only regarded as a method that must be followed for more than a hundred years after the founding of the Ming Dynasty, but even after Zhengde and Wanli's "Ming Dynasty canon" were incorporated into the code, its effective provisions were still in use. The Ming people promulgated the important matters of the state by imperial edict, and called "making legislation" the tradition of "writing as order". Until the end of Ming Dynasty, the so-called "Ming Dynasty without order" said that it could not be established.
【作者单位】： 中国社会科学院法学研究所;
【分类号】：D929
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