秦及汉初治狱程序中的“命”——从张家山M336《亡律》简251一252谈起

On the Ming Charge in the Criminal Procedure During the Qin and Early Han Periods:Based on the Content on Strips 251 and 252 Excavated from Zhangjiashan Tomb 336

秦及汉初对于罪人犯罪逃亡,案发后即启动治狱程序,罪人尚未归案也可通过“论”定罪量刑,所论为“完城旦舂、鬼薪白粲以上”重罪则需“命”。“命”是“论”之后削除民籍、载于命籍乃至公开通缉等多种措施的总和。张家山M336《亡律》简251-252规定了逃亡罪人在“命”后被捕得和自出的论罪方式,其论罪逻辑符合“数罪从重”原则。该论罪方式和逻辑与调整释文后的岳麓秦简《亡律》简051/2081、052/2039律文一致,但立法语言和律条结构在秦汉间发生较大变化。汉文帝刑制改革后,“命”适用罪名对应调整为“耐鬼薪白粲以上”,在西汉中期以后则逐渐突破重罪限定。从走马楼西汉简来看,确定“命罪”的原则演变为“加罪一等”。

In the Qin and early Han periods,when a criminal fled after committing a crime,the criminal process would start as soon as it happened.Even if the criminal had not yet been arrested,he could still be sentenced.If the crime was so serious that it could not be left untouched and the convict was sentenced to build city walls,to pound grain,to gather fuel,to sort white rice,or even to carry out heavier duties,the ming charge would be employed.The ming charge was a combination of various procedures including removing the household register of the convict,registering the convict in the ming charge list,or even publicly hunting the convict after being sentenced.According to strips 215 and 252 of the“Statutes on Abscondence”recovered from Zhangjiashan Tomb 336,the principle of convicting an escaped criminal who had already been arrested or was captured after a ming charge was issued was equivalent to that of multiple crimes being charged,which is similar to what is recorded in the Yuelu Collection of Writings on Bamboo Strips dated to the Qin.Nevertheless,the legislative language and structure of Han laws were different from that of Qin laws.After Emperor Wen reforming the penal system,the ming charge was employed for those sentenced to gather fuel,to sort white rice,or to carry out more tedious work.Till the middle of the Han Dynasty,the ming charge was adopted to sentence a wider range of criminals.