汉“苛人受钱”及其法律规制试探

Research on the Phenomenon of“Detaining Persons to Seek Bribes”in Han Dynasty and Related Legal Regulations

汉代“苛人受钱”应指官吏“拘止人而受钱”。《说文·叙》言“廷尉说律”,以“苛之字止句”申明了此罪特征。《晋书·刑法志》所载张斐《注律表》“呵人受钱”应为“苛人受钱”,表文是在身体强制的意义上将“苛人受钱”区别于其他五项“以威势得财”之赃。“苛人”常具有官吏依职权执法的表象,因此汉代法律体系区分“苛人”是否涉赃,以不同类型的规则分别予以规制:对单纯“苛人”,主要以诏敕整饬,为官吏执法保留了弹性空间;对“苛人受钱”之赃,则在律令体系内区分苛人事由,以涉嫌犯罪为由拘止人者入律上既有“受赇”罪名;不以涉嫌犯罪为由拘止人者,可能是在西汉调整赃罪体系后,以令新创“苛人受钱”罪名和独立的计赃量刑等级。

The crime of“keren shouqian”(苛人受钱)in Han Dynasty refers to officials'crime of soliciting bribes by detaining persons.The Preface to Shuowen shows that the Commandant of Justice(廷尉)explained that the meaning of the character“ke”(苛)consisted in of止and句,together meaning“to detain”,and this explanation clarified the nature of this crime.The crime“heren shouqian”(呵人受钱)seen in Zhang Fei's Notes to Statutes of Taishi(泰始律)included in Xingfazhi of Jin Shu(Book of Jin)must also be“keren shouqian”(苛人受钱),and Zhang's Notes distinguished“detaining persons to demand bribes”from the other five crimes of“gaining illegal profit by power and status”in the sense of physical coercion.Detaining persons often appeared to be officials'enforcement of law according to their authority,so the legal system of the Han distinguished whether the acts of“detaining persons”involved gaining illegal profits,and regulated them respectively with different types of norms.The simple“detaining persons”acts were mainly regulated by imperial edicts in order to reserve flexible space for officials to enforce the law.For the crimes of“detaining persons to demand bribes”,a division was made in the causes of detaining acts,and accordingly,detaining persons for money on suspicion of some certain crime was regarded as the existing crime of“receiving bribes”,while detaining persons to demand bribes with other causes than suspicion of crime was regulated by a new ordinance,which perhaps was intentionally set up to adjust the degrees for measuring the illegal profits,after the system of crimes concerning illegal profits had been reshaped.