唐律的使用及《律疏》体制内外“法例”的运作

Application of Laws in Tang Dynasty and Operation of “Legal Norms” within and outside of Lv Shu

《律疏》在唐代的使用,有可靠的历史记载与文献证实;有关史书上的案例与《律疏》不符,是因有《刑部格》、议请制度与制敕断罪的影响;《律疏》以《刑统》的形式实际行用于宋代;唐代在《律疏》体制内外都有法例。在不同的法例之间,按照其位阶及性质,相互间可以发生取代、依准、类举、比附及补充等关系,以适应社会法律生活的需求。《律疏》的法律环境抑制了"判例"的产生与推广。

The application of Lv Shu （interpretation and annotation of law） certified by reliable historical documents and literature. Nevertheless, according in Tang Dynasty has been to some historic literature, there were cases judged inconsistent with Lv Shu. The main reason was that these judgments were under the influence of Xing Bu Ge （formal norms of criminal laws）, further discussion for instruction and discretionary judgment by emperor. Lv Shu was applied in Song Dynasty in the form of Xing Tang （ criminal code） ; In Tang Dynasty, besides Lv Shu there were various legal norms. According to their respective status and features, dif- ferent legal norms can arouse different relations such as subrogation, taking one as reference for another, anal- ogy, comparison and complement to satisfy various needs of social and legal life. The legal environment of Lv Shu had actually restrained the initiation and development of ＂legal norms＂.