宋元明清復仇與法律的互涉

An Analytical Study of Revenge and the Law from the Song to Qing Dynasties

本文延續筆者〈兩漢魏晉南北朝復仇與法律的互涉〉、〈隋唐時期復仇與法律的互涉〉二文，對復仇觀與法律之實況與互涉，續作歷時性考察，上起北宋，終於清末。本文之〈二〉據《宋刑統》、《元律》、《明律》、《清律》及宋、元、明諸史之「刑法志」，析釋四朝復仇律令之發展與異同，指出：一、除《元律》為唯一明白允許「無條件復仇」外，宋、明、清三代律令大致皆以《唐律疏議》為主，進而補充之。二、宋、明、清三代雖皆以《唐律疏議》為本，然透過增補條文、小註等方式，仍呈現對復仇之不同態度，如《宋刑統》透過增補、加註條件，對復仇案之認定較《唐律》明確，既強調「有條件復仇」與「私和」之相關處置，又有「上呈候裁」之法，以皇帝為復仇案之最後裁決者；《明律》則依違於「有條件」、「無條件」復仇之間，部分律文如「尊長為人殺私和」條仍依循唐、宋律法之「有條件」復仇，然對「父祖被毆」則透過增補「當下」復仇可不論罪責之文，將復仇之名、殺人之權賦予復仇者，明顯同情／肯定復仇；《清律》雖踵承《明律》，然注文對「即時復仇」─即《明律》所謂可不論罪、無條件復仇之條件─界定更趨嚴格，也更重視「服屬關係」之概念。〈三〉則舉《宋史》具代表性之復仇實例，探論宋代之復仇現象。〈四〉則舉明、清二代判例、判牘數則，藉由分析案情，說明其所反映之律文及其與復仇觀之互涉。

As a follow-up of my previous studies, this article examined the concept of revenge and its effect with respect to the law from the Song dynasty to the Qing dynasty. To begin with, the paper analyzed the differences among the juridical regulations specific to revenge throughout the four dynasties, indicating that the law codes of all these dynasties guaranteed unconditional revenge based on the Tang Code (唐律疏議) except the Yuan dynasty. With supplement and annotations, the Codes of the Song, Ming, and Qing showed different ways of conceiving the act of retaliation. The Song Code, for instance, established a more explicit specification on the case of revenge than in the Tang Code. The Song Code stressed on the enforcement rules regarding conditional revenge and the private settlement (私和), and contained the regulation of “submission of the case for decision” (上呈候裁), in which case the emperor was assigned as the final arbiter. The Ming Code vacillated between “conditional revenge” and “unconditional revenge”. Some regulations, such as in “private settlement for the murder of familial elders” (尊長為人殺私和), has complied with the spirit of “conditional revenge” in the Tang and the Song Code. However, in the case of “father and grandfather being battered” (父祖被毆), the Ming Code allowed retaliation by adding the rule, in the law supplement, that “the crime could be pardoned if the retaliation had been carried out instantly.” Compared to its predecessor, the Qing Code adopted a more stringent definition in the notation on “instant revenge” (i.e. the condition for the unconditional revenge as stated in the Ming Code) and laid more emphasis on the degree of mourning relation. Next, the paper discussed some typical cases on revenge in the Song, and explored the phenomenon of retaliation in that particular era. Finally, the paper explained the concept of revenge and its effect in relation to the law during the Ming and Qing dynasties by analyzing judicial precedents and court case judgments of the time.