宋例新探

A New Analysis on the “Lì” in Song Dynasty

在中国古代,例的基本含义有二:一指判例或先例,此乃本源之义;一指法律原则或规定,多用于法典、制敕中。宋代以例为构词元素的法律术语多从第一义项,除条例、则例外,大多指判例、先例和惯例。宋例与制定法的关系是"法所不载,然后用例",是制定法的辅法,在法律体系中位阶最低。但惟常例(判例、先例)和惯例性质的例才是制定法的辅法,是法律渊源,而优例则否。宋例虽备受批评,但因其具有补制定法之不足的功能及简便、风险小等优点,在实践中被大量援用,其实际地位比较高。

In ancient China, the term ＂li＂ had two basic meanings： one referred to a precedent or an ordi- nance; the other referred to legal principles or rules. The former was the original meaning and applied to most legal items in Song Dynasty, except regulations; the latter was the frequently-used meaning in the codes and decrees. There was a legal proverb that could describe the relationship between ＂li＂ and the statute law： ＂If there was no relevant provision in codes, ＇ li＇ would be invoked. ＂ In a word, ＂li＂ was subordinate to the stat- utes and the lowest rank in legal system. However, it should be pointed out that ＂li＂ was a sub-statute and a source of law, only in terms of precedent or practice. In fact, ＂li＂ was frequently invoked and played an im- portant role in Song Dynasty, despite suffering strong criticisms. Because ＂li＂ could supply deficiencies of stat- utes and had some advantages, such as convenience, low risk.