西汉末期法制新识--以张勋主守盗案牍为对象

A New Understanding of the Legal System in the Last Years of the Western Han Dynasty:A Case Study of the Official Record of the Zhang Xun Embezzlement Case

湖南益阳兔子山遗址J3出土的两方木牍,记录了汉平帝元始二年张勋主守盗一案的判决结果,反映了较为丰富的西汉末期的法制状况:"鞫"除"认定犯罪事实"的程序之义外,也具有指代诉讼全部程序的涵义;计赃等级有250以上一级,与秦及汉初有所不同;"衣服如法",表明囚衣之服有法律规定;对主守盗有加倍追赃、令同居承担赔偿责任的要求;对处髡钳城旦的刑徒,执行收入司空、从事劳役的刑罚。牍文所见的"爵减",在现有史料的范围内指向回避刑等;此案的审判权在益阳县,"论决言"的含义是将审判结果报府,但未必是履行程序上的复核。

Two wooden tablets unearthed from J3 in Tuzishan,Yiyang,Hunan,recording the judgment in the case of embezzlement by Zhang Xun in the second year of the Han Emperor Ping(2 CE),provide rich information on the legal system toward the end of the Western Han dynasty.Here,the word ju(鞫)refers not only to the procedure for identifying the facts of a crime,but also to all the proceedings in a legal case.Unlike the Qin and early Han dynasties,this period had the grade of over 250 units of money for bribery,embezzlement and pilferage.The requirement that convicted criminals“dress according to law”indicates that prison attire was laid down by law.Twice the amount embezzled could be recovered from the perpetrator,and his household members were likewise liable for making good.Criminals sentenced to kunqian chengdan(髡钳城旦,having their heads shaved,wearing a cangue,and being engaged on public works)were to be sent to hard labor by the Minister of Works.The term juejian(爵减,reduced punishments for officials)found on the wooden slips means avoidance of punishment in the existing historical sources.The case came under the jurisdiction of Yiyang County.The term lun jue yan(论决言,reporting the final decision)meant reporting the outcome of the trial to the prefectural government,but did not necessarily imply a procedural review.