唐至宋舊五刑體制的破壞與元代近世新五刑的建立

The Destruction of the Old Five Punishments and the Establishment of the New in the Yuan Dynasty

自《唐律疏議‧名例律》文中規範了笞、杖、徒、流、死，五種刑等，其後多為後世所沿襲，五代乃至兩宋在刑名等級多用舊律判罪定刑，惟宋太祖制定折杖之法，以擊打脊杖或臀杖代換原先的笞、杖、徒、流四種刑的執行。是故有「流罪得免遠徒，徒罪得免役年，笞杖得減決數」這樣與原先唐制五刑名實脫離的狀況。約莫與兩宋同期在北亞稱雄的遼、金乃至後來統一中國的元的刑罰體系不可諱言地在「漢法化」的過程中也深受唐律的影響，接受中原漢地為主發展出的法律文化成果，也因為實際統治的必要不得不「改就亡國之俗、下從臣僕之謀。」基於實際案件斷例的整理編排，摸索出一條參酌古今的刑罰體系，但也因此無心插柳促成了下開明清時代近世新五刑的發展。本文試著從南北兩系的觀點，觀察原先唐律五刑體制的破壞與再建立，文中將兩宋視為南系，遼、金兩朝視為北系，並將結束分裂局勢的元朝五刑體制建立當作近世新五刑的開始。指出兩系發展的特色及對日後元朝重建五刑上扮演的影響。死刑，因為這個刑等，在唐以後並無實際上名實不符，或成為其他刑等併科的演變，是故本文不討論此一刑等的變化。

Since the formalization of the Five Punishments in Tang Code, it was generally followed and practiced by latter generations. From the Five Dynasties to the Song Dynasty, the verdicts concerning punishments were mostly made adhere to the old Tang Code, except for those in the“Law of Elimination” made by Zhao Kuangyin, the founding emperor of the Song Dynasty, which replaced the old practice of the four punishments of beating with a small stick, beating with a heavy stick, penal servitude, life exile with only beatings on the ribs or hips. In this manner, the practice of punishment went divert form the old Five Punishments of Tang Dynasty. Meanwhile, around the same period of the Song Dynasty, the thriving Liao and Jin Dynasties in Northern Asia, together with the Yuan Dynasty, who later united the Mainland, were greatly influenced by the Tang Code in the process of converting to Han Culture and inherited the traditional culture and law from the Mainland. Due to the actual necessity of ruling and administration, the Yuan Dynasty was forced to get accustomed the old Tang Code and took the advices from the local Mainland officials. As a result, the Yuan Governmentgradually developed a punishment system which collected and referred to both past and present cases and thus established a system of the new Five Punishments for the latter Ming and Ching Dynasties. In summary, this article aims to describe the destruction of the old Five Punishments and the establishment of the new from the aspect of the two diverse parties: the North and the South. The north party refers to the Liao and Jin Dynasties and the south party refers to the Song Dynasty. Furthermore, this article regards the development and establishment of punishment system of the Yuan Dynasty as the beginning of the new Five Punishments. Finally, this article points out the characteristics of the developments of the new Five Punishments from the perspective of the two parties, as well as highlight the significance of their roles.