唐律误杀考

唐律中的误杀指行为人因其主观认识与客观情况不符而造成他人死亡的行为。误作为一种非故意而予以宽宥的形态在唐以前已非常固定,在唐代及后世文献的记载中没有实质变化。《唐律疏议》中误共出现190次,涉及到46条律文,其含义均涉及行为人的主观心态及责任形式。唐律中的误杀可分为起因于劫囚、窃囚、盗、斗殴、谋杀,以及疏忽大意所致的误杀六类。全面解析律文所列的具体误杀行为与刑罚的对应关系是研究唐律误杀的关键。

The word Wu （mistakenness） in the Code of Tang Dynasty refers to the deviation of the perpetrator＇s subjective recognition from the objective reality. Thus the term Wu Sha （mistaken killing） refers to a situation where the perpetrator＇s perception of the circumstances and the legal significance of his conduct is not in conformity to the objective reality, and where such deviation leads to the death of somebody. The meaning of Wu, as a non-intentional state of mind calling for mitigated punishment, had been quite fixed even before the Tang Dynasty, and remains substantially unchanged during and after that period of time. The word Wu appears 190 times in 46 articles of the Code of Tang Dynasty, and on all such occasions refers to the deviation of the perpetrator＇s subjective recognition from the objective reality and the correspondent legal liabilities. Wu Sha as appears in the Code of Tang Dynasty may be divided into 6 types, mistakenly killing somebody in publicly rescuing a prisoner, mistakenly killing somebody in covertly rescuing a prisoner, mistakenly killing somebody in stealing, mistakenly killing somebody in fighting, mistakenly killing somebody in murdering another, and negligently killing somebody. The relationship between the specific forms of mistaken killing and their correspondent penalties is a key point for the research of Wu Sha in the Code of Tang Dynasty.