法律制度与唐宋社会秩序

发布时间：2018-05-17 18:55

本文选题：“法律”制度 + 法制框架　；参考：《东北师范大学》2006年博士论文

【摘要】：唐宋“法律”制度是整个中国古代法制发展史中承前启後的一个环节,地位十分重要。《宋刑统》紧密承袭《唐律疏议》,使得把唐宋法制联系起来研究成为可能;唐宋社会诸多方面的转型又是史学界研究的重点和热点,把唐宋的社会联系起来,以法制为切入点,就显得格外意义重大。本文的主题分九章,大致可以归纳为如下几方面的问题: 第一、唐宋法制与其他制度和文化现象的联系问题。《引论》一章论述了法制的礼制渊源及“礼法合流”在不同时期的表现;法制的文化属性以及同占统治地位的政治、哲学之间的关系,在中国古代尤其体现为家法是国法的基础。此外,第八章论述了科举制度同法制的关系。科举制度造成的社会结构的改变使得法官的素质有了深刻改变,即科举出身人进入法官队伍者明显增加;同时,对官员整体的“吏能”(包括司法素质)的要求加强了。第二、法制框架本身的问题。第一章对法律文本和立法问题的讨论,阐明了从唐宋时期律、令、格、式到敕、令、格、式及司法用例的发展问题,强调了立法中皇权色彩的加强,因事因时的权宜功能的加强;第二章是以笞、杖、徒、流、死为基本变化线索的刑罚制度问题的讨论。这是中国古代法制的核心,其功能不但在于是镇压百姓,官员犯罪以後,尽管大多数情况下可以当、赎、免,但仍然以律令中规定的“五刑”作为衡量所犯罪责的轻重尺度,因之决定行政处罚的轻重;第三章论述了以“十恶”重罪为核心的罪名体系,囊括了杀人、盗罪、赃罪、奸罪、诈伪等内容。第三、司法程序的问题。主要集中在第四章,对诉讼、审判程序和判词制度做了深入的剖析,指出了皇帝司法权的加强;唐宋时期司法审判中判词的经学色彩重于法学色彩的现实及其同後代法制比较之下的原始性。此外,第八章在论述三省、御史台、大理寺、刑部、审刑院等司法官署时,又从另一个角度和更细微处发覆了法官司法程序的运作。第四、法律制度理应沿着公平的趋势发展,但在这一过程中,由于社会本身的等级制度和人情因素,导致了法制的不公平。唐宋时期的法制是特权原则十分突出,而其变化趋势又十分明显的。第五章着力论述皇帝以“赦宥”为核心的种种特权对司法结果的影响,这是君主政治条件下,法制的必然着色;第六章论述了官僚、贵族的法律特权,由于社会中士族的瓦解,科举制度使下层士人的入仕机会大为增加,传统的“八议”特权被虚化、“官当”特权被强化、“赎刑”特权在下移(以至于惠及百姓);第七章从“连坐”这一国法对家族法的控制方式切入,描述了聚居家族的生活状态,尤其是以“家法”、“族规”、“邻约”消弭诉讼的法制作用,论述了唐代以来,较之南北朝时期,家族势力的削弱导致了唐宋时期家法的衰弱和国法加强的历史趋势。但家法仍然是国法的基础,并随着宋儒和理学之士的社会活动和倡导,聚族而居和兴立义庄成就了宋及宋以後家法的逐渐强势。
[Abstract]:The system of "law" in the Tang and Song Dynasties is a link between the preceding and the following of the history of the legal development of the ancient China. The status of the Song Dynasty is very important. It makes it possible to study the legal system of the Tang and Song dynasties. The transformation of the Tang and Song society is the focus and hot spot of the study of the history circles, and the social connection of the Tang and Song dynasties. It is of great significance to take the legal system as the breakthrough point. The theme of this article is divided into nine chapters, which can be roughly summed up as follows:
First, the relationship between the legal system of the Tang and Song Dynasties and the other systems and cultural phenomena. The chapter of introduction discussed the origin of the legal system and the performance of the "confluence of rites and laws" in different periods; the cultural attributes of the legal system and the relationship between the political and philosophical relations with the dominant position, especially in ancient China, were the basis of the national law. The eight chapter discusses the relationship between the imperial examination system and the legal system. The change of the social structure caused by the imperial examination system has made a profound change in the quality of the judges, that is, the people of the imperial examination are obviously increased to the judges. At the same time, the officials' overall "official ability" (including judicial qualities) should be strengthened.
Second, the problem of the legal framework itself. Chapter 1 discusses the legal text and legislative issues, clarifies the development of law, order, order, style, style, style and judicial use cases from the Tang and Song Dynasties, emphasizes the strengthening of the imperial power in the legislation and the strengthening of the expediency function of the time, and the second chapter is the basic change of the flogging, staff, apprentice, flow and death. This is the core of the Chinese ancient legal system. This is the core of the Chinese ancient legal system. Its function is not only to suppress the people, but to redeem and exempt from the official crime, but in most cases, but still in the law, the "five punishment" is the light weight measure of the criminal responsibility, and the third chapter is the decision of the administrative punishment. The system of accusation centered on "ten evil" felony is covered by murder, theft, stolen property, adultery, fraud and so on.
Third, the question of judicial procedure is mainly concentrated in the fourth chapter. It has made an in-depth analysis of the litigation, the trial procedure and the system of judgment, and points out the strengthening of the judicial power of the emperor. The color of the jurisprudence in the judicial trial of the Tang and Song Dynasties is heavier than the reality of the law of law and the originality under the comparison with the legal system of the descendants. In addition, the eighth chapter discusses the three provinces. Yushitai, the Dali temple, the Ministry of justice, the court of justice, and other judicial offices, from another point of view and more nuanced the judicial proceedings of judges.
Fourth, the legal system should develop along the fair trend, but in this process, due to the social hierarchy and human factors, the legal system is unfair. The rule of law in the Tang and Song Dynasties is very prominent and its trend of change is very obvious. The fifth chapter focuses on the various kinds of Emperor's "pardon" as the core. The influence of privileges on the judicial result is the inevitable coloring of the rule of law under the political conditions of the monarchy. The sixth chapter discusses the legal privileges of the bureaucrats and aristocrats. Because of the disintegration of the people in the society, the imperial examination system makes the opportunities of the lower ranks of the scholars increase greatly. The privileges of the traditional "eight argumentative" are weakened, the privilege of "official" is strengthened and the privilege of "Redemption" is "redeemed". In the seventh chapter, we describe the living state of the family, especially the legal function of "family law", "clan rules" and "neighbours" to eliminate the legal action of the family law, and the weakening of the family forces in the period of the Tang Dynasty and the weakening of family forces, which led to the Tang and Song dynasties. The decline of the family law in the period and the historical trend of the strengthening of the national law. However, the family law is still the foundation of the national law. With the social activities and advocacy of the scholars of the song and Confucianism and the scholars, the family and Xingyi Zhuang have achieved the gradual strength of the family law after the song and Song dynasties.
【学位授予单位】：东北师范大学
【学位级别】：博士
【学位授予年份】：2006
【分类号】：D929;K244;K242

【引证文献】