唐律中的“杀”与“死”

Kill and Death in the Law of Tang Dynasty

《唐律疏议》中"杀"与"死"皆为广泛出现的高频词汇,两者在篇目与律条中的分布呈现重合。结合其作为立法语言的专门含义与用法,我们清晰地看到,法典中分布重合的主要表现是:作为犯罪行为的"杀"与作为行为结果的"死"在定罪量刑过程中的密切关系。唐律中"杀就是死,死并非杀",即行为对象死亡是作为犯罪行为的"杀"表意本身所包含的当然含义,立法不会单独描述作为杀人犯罪结果的死亡;若立法列举了致人"死亡"的行为,则此种行为并非"杀人"。此种关系渊源于秦汉律中的"杀就是死,死就是杀"。致人"死亡"的行为逐渐从"杀人"中分化出来,在刑事法律规范体系中具有了独立的表达方式与相应的定罪量刑地位,背后蕴含的是行为人主观心态对于定罪量刑的影响逐渐增强。

In The Law of Tang Dynasty, "Kill" and "Death" are both widely used words of highfrequency,and the distribution of the two words in the chapters and legal provisions is overlapped. Combining its specific meaning and usage as a legislative language, we can see clearly that the overlap of distribution is mainly manifested in the close relationship between "Kill" as a criminal act and "Death" as a result of the act in the process of conviction and sentencing. In The Law of Tang Dynasty, "Kill is death, but death is not kill". As a criminal act itself, "kill" certainly contains the meaning of the death of the behavior object, legislation does not separately describe death as a result of homicide;if legislation enacts the acts of causing "death", such acts are not "killing people". This relationship originated from the "kill is death, and death is kill" in The Qin and Han dynasties’ law. The behavior leading to "death" gradually differentiated from "killing people", and it has an independent status on conviction and sentencing in the criminal legal system. Behind it contains that the effect of the actor’s subjective attitude on conviction and sentencing is enhanced.