簡便之罰：宋代的違制罪與「以違制論」

Convenient Punishment：The Punishment for Violation of the System and“in Accordance with Violation of the System”in Song Dynasty

宋代法律在唐宋社會變化下發生不少改變，違制罪的擴大是其中顯例。該罪自太宗起超出律文範圍，由違背皇帝文書之罪，變成違反皇帝制詔指示的刑罰。真宗朝開始大幅擴張，出現許多「以違制論」規定，無明定罰則的條文亦適用違制罪刑度，違制罪成為朝廷簡便的立法論刑標準。此後，兩宋時期「以違制論」條文不絕於書，配合宋代散敕頻發，起到補充律文，輔助敕令體系運作之效。違制罪本屬皇權象徵，「以違制論」亦具涵攝包括性，真宗又藉此彰顯君主身分、權威。與違制罪現有研究成果，強調該罪是讓法律處於未定狀態，充滿隨意性、不可預期的人治色彩，有所吻合。但是，就實際發展觀之，仁宗之後君臣主要著眼於違制罪的簡便性，用作重要立法方式而大量使用。再則，朝臣們雖積極建議運用違制罪，卻是刑度不高、處罰有限，故這看似皇權威壓的作法，在兩宋時期與其說是人治下的法治，不如說是簡便性立法所展現的彈性治理方式。

A lot of changes had taken place in the Song law system under the transition from the Tang Dynasty to the Song Dynasty. The expanded definition of the crime of violating the constitution is an obvious case. Under Zhenzong’s dominating, the definition of the crime further comprised violation of the emperor’s commands in addition to violation of the emperor’s instruments, which went beyond the original scope of related articles. The expansion also became a shortcut legislation criterion on the punishment which was applied to the articles without definite penalty. Afterwards, during the Northern and Southern periods of the Song Dynasties any judgements referred to the criterion of “being regarded as violation of the constitution”made a supplement to articles of laws and assisted the operation of the Song law system. The crime of violating the constitution was used to reflect the imperial power. The criterion of “being regarded as violation of the constitution”was universally applicable and thereby Zhenzong showed the identity and the power of the Emperor. It seems to be consistent with the part research findings that emphasize the Song law system was indefinite because of the crime of the violating the constitution and was regulated for the emperor in an arbitrary way. However, it is discovered that in the actual developing process the convenience of the criterion of “being regarded as violation of the constitution”was mostly noticed and the criterion was legislatively important. Therefore, it is more a flexible way of dominating under the shortcut legislation criterion than a way of dominating by ruling of man in view of active use of the crime of violating the constitution by the emperor and ministers, less punishment of the crime and limited applied cases of the crime.