宋朝法律形式及其变迁问题研究

Research on Forms of Law in Song Dynasty and Its Evolution

宋朝的法律形式构成较为复杂,在中国古代法律形式变迁中起到承上启下的作用。宋朝法律形式可以分为律、疏议、刑统、敕、令、格、式、申明、断例、指挥和看详等。根据法律性质的不同可以分为刑事类、非刑事类和混和类三种,其中刑事类法律形式有律、疏议、刑统、敕和断例;非刑事类法律形式有令、格和式;混和型有申明、指挥和看详。申明中有两类属于刑事类,即申明刑统和随敕申明。根据在国家法律适用中的效力等级和作用,宋朝法律形式可以分为:基本法律渊源、一般法律渊源和补充法律渊源,其中基本法律渊源有律、疏议和刑统;一般法律渊源有敕、令、格和式;补充法律渊源是申明、断例、指挥和看详。宋朝法律形式的基本特点是繁多而有分工。宋朝法律形式的繁杂导致中后期"事类"立法的兴起,最终促使中国古代法律形式转向简化。

Forms of law in Song Dynasty are rather complicated since they have played both a proceed- ing and successive role in evolution of laws in ancient China. The specific forms of law includes Lv, Shuyi, Xingtong, Chi, Ling, Ge, Shi, Shenming, Duanli, Zhihui and Kanxiang, which can be divided into three categories of criminal, non - criminal and mixture. The criminal forms of law include Lv, Shuyi, Xingtong, Chi and Duanli; the non -criminal forms include Ling, Ge and Shi, while the rest forms listed above are mixture in which Shenming covers two criminal forms of Shenming Xingtong and Suichi Shenming. Accord- ing to the status of legal effects in application of national laws, forms of law in Song Dynasty can be divided into basic legal sources, general legal sources and complementary legal sources. Basic legal sources include Lv, Shuyi and Xingtong; general legal sources include Chi, Ling, Ge and Shi; while the rest forms are complementary. It can be found that basic features of forms of law in Song Dynasty are complex but specif- ic, which led to the rising of legislations by ＂analogy＂ in Mid - and Late - Song and finally induced the forms of law in ancient China to simplicity. Thus in Yuan Dynasty, forms of law consist of Duanli and Tia- oli, while in Ming and Qing Dynasties, forms of law consist of Lv and Li.