一條律文各自解讀：宋代「爭鶉案」的爭議

Different Interpretations of the Same Crime and Statute: Controversies of the Quail Case in Sung China

爭鶉案發生在宋仁宗嘉祐七年（1062），乙向好友甲要鬥鶉不成，取了就走，甲追上去，一腳把乙踢死了。此案的第一個爭議是乙是否成盜？本文從四方面論証，認為難以盜罪定案：一、從兩造的關係來看，乙與甲的友好關係的確不能免乙於盜罪；二、從犯罪的動機來看，乙似無行盜的動機；三、從犯罪的方法來看，乙的行為並不完全符合律文〈強盜竊盜〉條對盜的界定；四、從犯罪的結果來看，乙得鶉在手，符合律文〈公取竊取皆為盜〉條對盜的界定。關鍵在於：要宣判乙的刑罰，必須根據〈強盜竊盜〉條，故難以定罪。在此情形下，另一律文〈不應得為而為〉條較為適用，那乙就不算犯了盜罪。明顯可見，律文本身的難以周全和彼此的不完全吻合是同罪異判的一個重要原因，不一定是由於外力（如政治）的影響。此案的第二個爭議是甲可否殺乙？相關的律文〈將吏追捕罪人〉條究應如何解讀？從宋到現代，仍然不能確定應該讀作「犯事者一逃即可殺」還是「犯事者先持械拒捕然後逃走始可殺」。本文從八方面論証，主張後說，甲不得殺乙。一是律文的文理結構，二是律文內部的合理性，三是律文外部的一致性，四是與同類律文的比較，五是律文的歷史發展，六是實用主義，七是目的論，最後指出人情與利害的考慮亦可能介入本案，使覆審的司法機構傾向甲不得殺乙。一條律文內的短短幾句就決定著捕者與盜者的生與死，立法者、執法者與解讀者能不加倍謹慎！本文的目的，除了嘗試解決爭議外，主要還是提出解讀律文的方法和理論，或可提供學人參考應用，同時克服史料的不足（爭鶉案不超過一千字）。明顯可見，無論古今不分中外，對法律的看法和研究實在有許多共通之處，傳統的法律還是有很多值得借鏡的地方。

The Quail Case happened in 1062. Being refused by his good friend Mr. A to give him a fighting quail, Mr. B seized the quail and went away. A caught up and kicked at B's flank, and B died instantly. The first controversy was whether B had committed a crime of theft or robbery, which in tum decided whether A was a victim who killed B in defense or a murderer who killed B in strife. Examining the case from four perspectives, this essay argues that B could hardly be convicted a thief or robber. First, regarding the relationship of the parties, B's friendship with A could not exempt him from the guilt of theft or robbery. Second, regarding the motivations of crime, B did not seem to have intended to steal or rob. Third, regarding the perpetration of crime, B's action did not square with the definitions of theft or robbery in the Statutes on Theft and Robbery. Fourth, regarding the result of crime, B indeed had the quail under his control, thus matching the Statute on Taking Goods Openly or Secretly Constitutes Misappropriation. Despite these pros and cons, B after all could not be found guilty of theft or robbery because the Statutes on Theft and Robbery were the only statutes (not the Statute on Taking Goods Openly or Secretly Constitutes Misappropriation) that defined crimes with penalties. In order to punish B, the judges could have applied another statute: the Statute on Doing What Ought Not To Be Done. As such, B was legally a wrongdoer rather than a thief or robber. Obviously, this controversy was caused rather by contradictions and blind spots in the law itself than by any extraneous factor (such as political intervention). The Statutes on Theft and Robbery rendered B not guilty, whereas the Statute on Taking Goods Openly or Secretly Constitutes Misappropriation rendered him guilty but not punishable. The second controversy was whether A could legally kill B even if B had violated the Statute on Taking Goods Openly or Secretly Constitutes Misappropriation. The applicable statute was the Statute on Arrest and Resistance, which has been subjected to conflicting interpretations since the Sung. Some scholars argued that an arresting party (officer or victim alike) could simply kill a fleeing offender (so A could kill B), while others argued that an arresting party could kill a fleeing offender only after the latter had put up an armed resistance (so A could not kill B). This essay supports the latter opinion with eight arguments: first, the syntactical structure of the statute; second, the internal coherence of the statute; third, the external consistency of the statute; fourth, comparisons with equivalent statutes; fifth, the historical development of the statute; sixth, pragmatic analysis; seventh, goal theory; and finally, the likelihood that non-legal considerations may have induced the reviewers of the Quail Case to maintain that A could not kill B. This essay proposes not only solutions to the controversies of the Quail Case but also a methodology of analyzing statutes that might overcome the scarcity of historical records (the Quail case has less than 1,000 words). It also illustrates the relevance of traditional law to modem law, as well as the similarity between the methodologies of eastern and western legal studies.