敕与北宋立法关系研究
发布时间：2018-08-30 14:42
【摘要】：立法是指各种法律形式的制定、修改和废止。北宋的法律形式有《宋刑统》、令、格、式、例以及“编敕”和其它由各种法律形式混合编修而成的法典。北宋的立法就是这些法律形式的制定、修改和废止活动。在帝制时代,王言为命,皇帝发布命令都是通过一定的文书形式来实现的,其立法亦然。在北宋,基于敕这一文书形式使用的广泛性和频繁性,就成为各种王言之制形式的代称。 北宋政府用敕对《宋刑统》进行修改以适应社会变化的需要,修改的方式有冲改《宋刑统》中的律文,也有冲改其中的敕条。北宋政府还用敕对《宋刑统》进行补充,主要采取制定“准律处分”、“以违制论”和“以大不恭论论”等类型的敕来补充《宋刑统》适用的范围和对象。就敕与《宋刑统》的适用来看,北宋通过敕对《宋刑统》进行修改和补充,新定的敕具有优先适用性,随着越来越多的优先适用新敕的制定,最后使得《宋刑统》成为一个原则性的基础法典,而不是一个实用性强的法典。 北宋政府通过敕制定令、格、式条文,其语言表达形式主要有:著为令、著为格、著为式等,直接制定相应的令格式条文。也通过敕对令、格、式条文进行修改,主要使用:著于令、著于式等方式,对相应法典中令格式条文进行修改。北宋政府还将使用敕制定和修改形成令格式条文编成单项的令、格、式法典。 在北宋,例可分为政事裁处的例、刑事司法的断例及其它的事例。这些例原本都是通过皇帝的敕作出的非立法性质的裁断,在裁断作出后,出现了类似的情况,这些裁断就被参照适用,并且又通过敕进行修改和规范,就成为定例,是皇帝意志的神圣性赋予这种普通政事裁断以法律的属性。北宋的例和敕的关系还有直接将行用既久的例制定为敕、修改例制定成敕以及将例制定成相应的令格式形式。例的数量极为庞大,在政治生活中使用广泛,在皇权时代基于皇帝的敕作出的例具有神圣性,对其后的相类似事项具有一定的拘束力,为了限制随意将一些特别的裁处作为例去援用,北宋政府采取了在敕中规定“不得援例”的方式,以限制该裁处被援用的可能性。这些“不得援例”的特别裁处,主要是皇帝对亲属、重臣和身边人的滥恩。北宋政府既想使用例处理政事,又想避免其副作用,就对例进行整理和编修,将例整理后配合律令格式使用,一般按照所编例的属性,以该事项所属的政府机构来命名,主要有中枢机构的例,刑事司法的断例和其他政府机构的例。 在北宋,几乎每个皇帝在位期间都要整理敕。整理的方式有准立法性质的编类“续降”,更多的是立法性质的编修敕条。这种立法性质的整理方式,在北宋前期主要是将敕编修为“关刑名”的“编敕”、将敕条按照属性编为令典、格典和式典,以及编一州一县一司一务的敕。即:敕、令、格、式分别编修。北宋中后期,随着社会政治经济形势的变化,将各种法律形式分别编修成为单项的法典,已经不能适应现实要求,就有了诸如“敕式”、“敕令式”、“敕令格式”等将敕混合编修的整理形式。这些法律形式之所以能混合编修,根本原因在于它们都来源于敕。 通过敕制定、修改、废止律、令、格、式、例这些法律形式,是北宋的立法活动的重要组成部分。北宋政府还将敕直接制定成为具有普遍适用性的法条。北宋立法型敕的制定要经过议案的提出和审议,对议案的草拟和签署以及颁布的程序。北宋立法型敕主要使用“自今”、“条约之”、“奏裁”、“著为定制”等类的语言表达方式,这些表达方式造就了北宋立法“参照适用式”、“准用式”、“冲改式”、“添附式”等立法技术特点。北宋的立法活动几乎都是通过敕进行的,可将之称为“以敕立法”现象。以敕立法对于北宋法制的完备具有重要作用,通过对以敕立法与北宋立法实施关系的考察,可以发现以敕立法在形成北宋立法完备性的同时也使得北宋的许多立法成为“具文”。北宋立法多成为具文表现在:本来已经有了明确的制定法,却还要进行重复立法、臣僚反复陈请要求立法和申明已定之法。北宋立法多成为具文的原因在于帝制时代以敕立法“当时为是”的根本特点,及以敕立法与北宋的官僚政治密切结合所致。
[Abstract]:Legislation refers to the enactment, amendment and abolition of various legal forms. The legal forms of the Northern Song Dynasty include the Song Penal Code, the decree, the case, the case, and the "compilation" and other codes compiled by various legal forms. The legislation of the Northern Song Dynasty is the enactment, modification and abolition of these legal forms. In the Northern Song Dynasty, based on the universality and frequency of the use of the instrument form, it became the pronoun of various forms of Wang Yan.
The Northern Song Dynasty government amended the Song Penal System with the help of the pinch to meet the needs of social change. The way of amendment was to change the laws and articles in the Song Penal System, and also to amend the pinch. The Northern Song Dynasty government supplemented the Song Penal System with the pinch, mainly adopting the types of "quasi-legal punishment", "violation theory" and "irreverence theory". The scope and object of application of "Song Penal System" are supplemented. As far as the application of "Song Penal System" and "Song Penal System" is concerned, the revised and supplemented "Song Penal System" in the Northern Song Dynasty has priority applicability. With more and more preferential application of "Song Penal System", the formulation of "Song Penal System" finally makes it a principled basic code, not a practical one. A code of law.
In the Northern Song Dynasty, the government directly formulated the corresponding format of decrees through the formulation of decrees, cases and forms, which were mainly expressed in the form of writings, cases and forms. The use of imperial edict is made and amended to form the order, lattice, and code of format clauses.
In the Northern Song Dynasty, the cases could be divided into administrative adjudication cases, Judicial Adjudication Cases and other cases. These cases were originally made by the emperor's enthronement of the non-legislative nature of the adjudication. After the adjudication was made, a similar situation appeared. These adjudications were referred to and applied, and then amended and standardized by the enthronement, and became statutes, which was the emperor's intention. The sacredness of the will endows this kind of ordinary political judgment with the attribute of law. The relationship between the case and the imperial court in the Northern Song Dynasty also included the formulation of the long-used case directly as the imperial court, the formulation of the amended case as the imperial court and the formulation of the corresponding order form. In order to restrict the arbitrary use of some special tribunals as examples, the Northern Song government adopted the method of stipulating "no case can be relieved" in the palace to limit the possibility of the tribunal being relieved. These "no case can be relieved" special tribunals, mainly the emperor's. The government of the Northern Song Dynasty not only wanted to use cases to deal with government affairs, but also wanted to avoid their side effects. It arranged and revised the cases and used them in accordance with the format of laws and decrees. Examples of other government agencies.
In the Northern Song Dynasty, almost every emperor in power had to arrange the collation. The collation method was quasi-legislative categorization of "continued surrender" and more of the legislative nature of the collation. In the middle and late Northern Song Dynasty, with the change of the social, political and economic situation, the various legal forms were compiled into separate codes, which could not meet the actual requirements, such as "Royal Form", "Royal Form", "Royal Form", "Royal Form", "Royal Form" and so on. The basic reason why these legal forms can be compiled and revised together is that they all originate from the uuuuuuuuuuuuu
These legal forms are an important part of the legislative activities of the Northern Song Dynasty. The government of the Northern Song Dynasty will directly formulate laws with universal applicability. The formulation of the legislative type of the Northern Song Dynasty should go through the process of proposing and deliberating the bill, drafting, signing and promulgating the bill. The legislative style mainly used the language expressions such as "from now on", "treaty", "memorial judgment", "authorship as customization". These expressions created the legislative technical characteristics of the legislation of the Northern Song Dynasty, such as "referential application", "quasi-use", "impulse reform" and "attachment". It is called the phenomenon of "Legislation by Extension". Legislation by Extension plays an important role in the perfection of the legal system in the Northern Song Dynasty. Through the investigation of the relationship between legislation by Extension and the implementation of legislation in the Northern Song Dynasty, we can find that legislation by Extension not only forms the perfection of legislation in the Northern Song Dynasty, but also makes many legislations in the Northern Song Dynasty "written". In the Northern Song Dynasty, the legislation was mostly written because of the basic characteristics of the imperial era and the close combination of the imperial legislation and the bureaucratic politics in the Northern Song Dynasty.
【学位授予单位】：河南大学
【学位级别】：博士
【学位授予年份】：2011
【分类号】：K244
本文编号：2213382
[Abstract]:Legislation refers to the enactment, amendment and abolition of various legal forms. The legal forms of the Northern Song Dynasty include the Song Penal Code, the decree, the case, the case, and the "compilation" and other codes compiled by various legal forms. The legislation of the Northern Song Dynasty is the enactment, modification and abolition of these legal forms. In the Northern Song Dynasty, based on the universality and frequency of the use of the instrument form, it became the pronoun of various forms of Wang Yan.
The Northern Song Dynasty government amended the Song Penal System with the help of the pinch to meet the needs of social change. The way of amendment was to change the laws and articles in the Song Penal System, and also to amend the pinch. The Northern Song Dynasty government supplemented the Song Penal System with the pinch, mainly adopting the types of "quasi-legal punishment", "violation theory" and "irreverence theory". The scope and object of application of "Song Penal System" are supplemented. As far as the application of "Song Penal System" and "Song Penal System" is concerned, the revised and supplemented "Song Penal System" in the Northern Song Dynasty has priority applicability. With more and more preferential application of "Song Penal System", the formulation of "Song Penal System" finally makes it a principled basic code, not a practical one. A code of law.
In the Northern Song Dynasty, the government directly formulated the corresponding format of decrees through the formulation of decrees, cases and forms, which were mainly expressed in the form of writings, cases and forms. The use of imperial edict is made and amended to form the order, lattice, and code of format clauses.
In the Northern Song Dynasty, the cases could be divided into administrative adjudication cases, Judicial Adjudication Cases and other cases. These cases were originally made by the emperor's enthronement of the non-legislative nature of the adjudication. After the adjudication was made, a similar situation appeared. These adjudications were referred to and applied, and then amended and standardized by the enthronement, and became statutes, which was the emperor's intention. The sacredness of the will endows this kind of ordinary political judgment with the attribute of law. The relationship between the case and the imperial court in the Northern Song Dynasty also included the formulation of the long-used case directly as the imperial court, the formulation of the amended case as the imperial court and the formulation of the corresponding order form. In order to restrict the arbitrary use of some special tribunals as examples, the Northern Song government adopted the method of stipulating "no case can be relieved" in the palace to limit the possibility of the tribunal being relieved. These "no case can be relieved" special tribunals, mainly the emperor's. The government of the Northern Song Dynasty not only wanted to use cases to deal with government affairs, but also wanted to avoid their side effects. It arranged and revised the cases and used them in accordance with the format of laws and decrees. Examples of other government agencies.
In the Northern Song Dynasty, almost every emperor in power had to arrange the collation. The collation method was quasi-legislative categorization of "continued surrender" and more of the legislative nature of the collation. In the middle and late Northern Song Dynasty, with the change of the social, political and economic situation, the various legal forms were compiled into separate codes, which could not meet the actual requirements, such as "Royal Form", "Royal Form", "Royal Form", "Royal Form", "Royal Form" and so on. The basic reason why these legal forms can be compiled and revised together is that they all originate from the uuuuuuuuuuuuu
These legal forms are an important part of the legislative activities of the Northern Song Dynasty. The government of the Northern Song Dynasty will directly formulate laws with universal applicability. The formulation of the legislative type of the Northern Song Dynasty should go through the process of proposing and deliberating the bill, drafting, signing and promulgating the bill. The legislative style mainly used the language expressions such as "from now on", "treaty", "memorial judgment", "authorship as customization". These expressions created the legislative technical characteristics of the legislation of the Northern Song Dynasty, such as "referential application", "quasi-use", "impulse reform" and "attachment". It is called the phenomenon of "Legislation by Extension". Legislation by Extension plays an important role in the perfection of the legal system in the Northern Song Dynasty. Through the investigation of the relationship between legislation by Extension and the implementation of legislation in the Northern Song Dynasty, we can find that legislation by Extension not only forms the perfection of legislation in the Northern Song Dynasty, but also makes many legislations in the Northern Song Dynasty "written". In the Northern Song Dynasty, the legislation was mostly written because of the basic characteristics of the imperial era and the close combination of the imperial legislation and the bureaucratic politics in the Northern Song Dynasty.
【学位授予单位】：河南大学
【学位级别】：博士
【学位授予年份】：2011
【分类号】：K244
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