论《唐律》“不应得为”条

On the Statute of “Doing What Ought Not to Be Done” in The Tang Criminal Code

"不应得为"条是《唐律》为惩治"杂犯轻罪"、弥补成文法规不足而在《杂律》篇中专门设立的一个概括性条款。从各种记载来看,这种条款早在汉朝就已经存在,唐朝应是继承自前朝。"不应得为"条的适用须具备两个条件,一是律令无条,一是理不可为。律令无条是指对某种行为律、令、格、式均无规定,同时也无法适用"举轻以明重"的入罪方法。理不可为则是指按照法律的精神不应该做。"不应得为"条规定了笞四十和杖八十两种轻重不同的刑度,但这两种刑度仅是量刑的两个基本刑罚标准,执法者可以酌情据理适当下调。在确定不应得为刑罚的轻重时,一个负责任的执法者应该会有所参照,这个基本的参照物就是法律或刑法。"不应得为"条扩大了《唐律》的打击范围,使一些在统治者看来不当却没有具体法律规定的行为也有可能受到刑事制裁,但对这一作用不宜过分夸大。

The statute of 'doing what ought not to be done'is a special statute which was made for punishing the misdemeanors not stipulated in The Tang Criminal Code. According to records,in the Han Dynasty,there was already this statute,likely followed by the later dynasties and the Tang Dynasty. For the application of the statute of 'doing what ought not to be done,'two conditions are necessary: first one is having no law for an action,the other is that the action ought not to be done in light of the spirit of the law. This statute stipulates two kinds of penalty: beat forty and flog eighty,which are not fixed but to be reduced according to the plot. In the determination of the penalty for the action being ought not to be done,a responsible judge should have a reference that was and only was law or criminal law. The 'doing what ought not to be done'statute expanded the scope of application of The Tang Criminal Code and made some bad actions which are not only not being stipulated in The Tang Criminal Code but also are have not been punished. Of course,this effect should not be exaggerated.