西夏法制研究

【作者】 邵方；

【导师】 俞荣根；

【作者基本信息】 西南政法大学 ， 法律史， 2008， 博士

【摘要】 论文以西夏法律制度对于中原法律的吸收借鉴,以及西夏法律所体现出的民族特性为主线,将其纳入中国法制史和中华法系的大系统中,论述西夏法律对于以唐律为代表的中华法系的传承与创新。绪论主要介绍了选题的理论意义、实际价值以及研究工作的目的、研究范围、研究方法和国内外西夏法律研究现状。正文第一章、西夏法典的制定、主要内容及编纂体例。本章首先论述了西夏法典《天盛律令》的制定和主要内容,接着论述西夏法典的编纂体例及特点,认为西夏法典是在吸收和借鉴《唐律疏议》、《宋刑统》的基础上编纂的,并有所创新:1、在法典的编纂形式上《天盛律令》与唐、宋律有很大不同;2、西夏法典中的条文结构为“三要素”的形式,由假设、罪状和制裁三部分构成;3、《天盛律令》在法律构成方面实行诸法合体的形式。《天盛律令》的编纂体例是一种合体法律形式,既有实体法,又有程序法;《天盛律令》的内容以刑法为主,民事法、军事法、宗教法也占有相当的比重。最后将《天盛律令》与《唐律疏议》、《宋刑统》的各卷内容进行比较,发现《天盛律令》大部分内容是《唐律疏议》、《宋刑统》所没有的。在内容相似的部分中,除“十恶”、“八议”等内容基本因袭唐宋律以外,其余各门与唐宋律的相关内容也有很多不同。第二章、西夏的刑事法律制度。本章主要探讨了西夏法典《天盛律令》中的刑种、罪名和刑罚裁量制度。从《天盛律令》的相关规定来看,与唐宋律令一样,西夏法律对十恶等严重犯罪多适用重刑,同时在西夏的刑罚体系中,杖刑运用较多。在法律适用上,西夏法律沿袭了中国古代刑法的按身份定罪量刑的裁量制度。唐宋时确立了笞、杖、徒、流、死五刑,西夏法典中也确立了五刑制,但是与唐宋五刑有所不同,西夏的刑制中以劳役及戍边等代替流刑,西夏的五刑为笞刑、杖刑、徒刑(分为短期徒刑、长期徒刑、无期徒刑)、劳役或戍边、死刑五种,在中华法制史上首次出现了长期徒刑和无期徒刑之分。第三章、西夏的厩牧法和军事法。本章论述了西夏以游牧为主的社会经济与西夏畜牧法的制定,以及西夏军事法律制度两个论题。西夏法律严格保护官牧业,并且制定了详细的法律条文保护官私畜物以及牧场、水源等,对于违律者进行严厉惩处。西夏法典《天盛律令》中规定了完备的畜牧法律制度,这也体现出西夏党项族以游牧为主的民族特征。西夏的军事法也十分完备,夏崇宗贞观年间颁布的西夏文军事法典《贞观玉镜将》,从赏功、罚罪、进胜等方面,对于战斗中将士们的行动作了规定,并且规定了军队集结和行进中的有关事项。论功行赏、奖罚分明是西夏军法的基本思想。到仁宗时颁布的《天盛律令》有详细的兵役制度,是对于西夏初期的兵役制度的调整,体现出西夏党项族的尚武精神和全民皆兵的民族特征。第四章、西夏的宗教法和民族习惯法。本章分为两个部分,第一部分西夏的宗教法首先介绍党项人的原始宗教,接着介绍西夏佛教的兴盛及统治者对其依赖,最后探讨西夏宗教法律制度,分析西夏宗教的管理制度、封号和赐衣制度、试经度僧和度牒制度、西夏僧道所享有的特权以及所承担的义务。西夏政权对佛教、道教加以保护,也对其进行严格管理,在中央和地方均设置了宗教管理机构。西夏出现了中国历史上最早的帝师封号(即西夏国家对于藏传佛教高僧的最高封号,元代继承了这一制度)。第二部分西夏的民族习惯法,论述了西夏的“复仇”、“盟誓”、“大人”、“和断官”、“赔命价”等民族遗风。带有党项民族习惯法特征的“和解”原则在西夏法典《天盛律令》卷三“自告偿还解罪减半议合门”规定中有所体现。卷十四“误殴打争斗门”有以牛、羊等实物赔偿人肢体伤残的规定,保留了党项民族原有的习惯法遗风。第五章、西夏的民间契约。本章论述西夏民间契约及西夏法律对于民间契约的保护,西夏民间契约主要有卖地契约、典当铺契约、借贷契约等。西夏契约的格式与唐代契约的习惯书写基本相同,但也有不同之处。与唐律一致,西夏契约立约的基础是双方的合意,双方合意的契约是受西夏法律保护的。为了防止高利贷现象引发的各种社会问题,西夏法律对于放贷利率有严格的限制。第六章、西夏的诉讼审判制度。本章主要论述了西夏诉讼审判制度,西夏设有相应的司法机构、审判制度、诉讼制度以及监狱管理制度。在刑事诉讼中西夏法典明确规定对刑讯逼供加以一定的限制,规定人犯患病、怀孕可以申请保外就医。在狱政管理上,法典规定了人犯基本的生存条件。这些均反映出儒家慎刑德政法律思想对于西夏诉讼审判制度的影响。第七章、西夏的亲属法律制度。西夏法典中体现了儒家亲族伦理本位法律原则,注重“礼”对于维护尊卑长幼亲等秩序的作用。随着西夏社会封建化的进程,亲属制度不断完善,西夏法典《天盛律令》确立了儒家亲族伦理本位。本章论述了西夏立法者将儒家服制的详细规定写入法典,并规定了违反服制的处罚,分析了西夏亲属分类原则与合称称谓,得出西夏已经出现了直系与旁系分类原则和辈分原则,与中原社会亲属分类原则大体一致,这是西夏党项社会可以接受儒家服制的基础,同时西夏大量合称称谓的存在,说明西夏社会还保留党项民族的原始遗风。通过对于西夏法典有关服制具体规定的考据,发现西夏法典中有关服制的具体规定主要来自唐宋时期的律、礼、令、典章,尤其是《大唐开元礼》。并且比较了西夏法典与唐律中对于违反服制时的处罚规定,得出西夏法典对于违反服制的处罚远不及中原法典严格,西夏对于中原服制的吸收也是有所取舍的。并论述了西夏法典中的“同居共财”法律原则,及其对于唐宋律中相关规定的变更。西夏法典受儒家亲族伦理思想的影响,《天盛律令》确立了亲属相隐制度,并严禁亲属之间互相侵犯。儒家法律中依据亲属关系派生出的法律特权制度“荫庇制度”和与之相伴的“连坐制度”也都被详细地写入西夏法典。第八章、儒家思想对西夏法制的影响。本章首先分析了儒家思想得以影响西夏法制的原因:西夏统治者对中原王朝政治制度的仿效,西夏统治者对中原儒学的尊崇,西夏人著述中对儒学的传承,“以孝道为核心”的儒家思想对西夏社会风尚的影响,西夏社会家庭结构的变化等。接着探讨了儒家“尊君、孝亲、崇官”思想对西夏法制的影响,儒家慎刑原则对于西夏刑事裁量制度的影响,西夏刑事立法中体现的儒家“中典治国、用刑持平”思想,儒家德政思想对西夏狱政和诉讼制度的影响。结束语结束语部分更进一步明确和提炼了论文的观点,论证了西夏法律是中华法系的组成部分,主要体现在儒家学说对西夏立法的深刻影响;西夏农业与畜牧经济并重的法律体系,丰富和补充了中华法系农本主义的特征;以及中华法系“立法与司法始终集于中央”的特征在西夏法律中的体现;并且进一步论述了西夏法典《天盛律令》在编纂体例和内容上对于中华法系的创新与发展。中华法系本身就是在中国历史上融合了以汉民族为主体的各民族的法律意识和法律原则的集合体,以西夏法典《天盛律令》为核心的西夏法律制度是中华法系的一部分。更多还原

【Abstract】 This dissertation consists of three parts: introduction, the main body and the conclusion, among which the main body comprises eight chapters.IntroductionThis section of the dissertation mainly introduces the theoretical significance and practical value of the topic chosen for the present dissertation, the purpose, scope and method of the research carried out for the present dissertation as well as the current state of both domestic and overseas academic research into the Tangut law of the ancient Western Xia Regime of China(also known as the Tangut Empire, which was established by the nomadic Tangut people and existed in northwestern China between 1038 AD and 1227 AD).The Main BodyChapterⅠdeals with the formulation, main content and compilation format of Tangut codes. This chapter first elaborates on the formulation and main content of the Tangut code TianshengLüling, literally translated as Legal Code of the Tiansheng (literally Heavenly Prosperity) Reign which is a monumental code composed under the decree of the Li Renxiao, Emperor Renzong of the Western Xia Regime. This chapter proceeds to treat the format and uniqueness of the compilation of Tangut codes, arguing that compilation of Tangut codes was completed by drawing from a large fund of heritage from prevailing codes composed by contemporary mainstream Han Chinese dynasties, such as the TanglüShuyi, or Commentaries on the Codes of Tang Dynasty, and the Song Xing Tong, or The Uniform Penal Code of Song Dynasty; there are some noteworthy innovations: first, in terms of compilation format, there are significant differences between the Tiansheng Lüling and the legal codes of Tang and Song dynasties; second, articles in Tangut legal codes are arranged in a three-part format, namely, the hypothesis, facts of a crime and the punishment, which is unprecedented in the Chinese legal family; third, in terms of its composition, the Tiansheng Lüling is compiled within an all-inclusive framework that takes all the branches of the law under its umbrella. The compilation format of the Tiansheng Lüling was an integrative format, which covers both substantial law and procedural law; and although criminal law is predominant in Tiansheng Lüling, civil law, military law and religious law also take up a significant part of it. The chapter ends with a systematic comparison of the Tiansheng Lüling against the Commentaries on the Code of Tang Dynasty and the Uniform Penal Code of the Song Dynasty, through which it is discovered that the majority content of the former is not available in the later and even for the parts that the two do share similarities, there are numerous remarkable differences, except for a few legal notions such as the Shi’e (Ten Abominations, which is the collective term for ten types of felonies, namely, Plotting rebellion, Plotting great sedition, Plotting treason Contumacy, Depravity, Great irreverence, Lack of filial piety, Discord, Unrighteousness and Incest) and Bayi(the system of exemption of eight categories or persons from criminal prosecution).ChapterⅡexamines the Tangut criminal justice system. It discusses the kinds and titles of punishments, and punishment adjudication system of the Tangut legal code Tiansheng Luling. From the perspective of the relevant provisions in Tiansheng Luling, it is found that, the same as the Codes of Tang and Song Dynasties, major crimes such as the ten admonitions are punishable by severe punishments; however, compared with the legal codes of the Tang and Song dynasties, the punishment of flogging with cudgel plays a much more important role in the Tangut criminal punishment system, which testifies to a tendency toward leniency in the Tangut legal system. In terms of the application of law, the legal system of Tangut Empire inherited the concept of meting out punishments on the basis of the social status of the accused. Furthermore, although the Tangut criminal punishment system also features a System of Five Punishments as the legal codes of Tang and Song dynasties do, the former is nonetheless different from the latter in that the Tangut system of five punishments, unlike that of the Tang and Song dynasties which consists of five types of punishment namely, caning, flogging by cudgel, imprisonment with forced labor, banishment and capital punishment, does not include banishment as a form of punishment. Instead, the Tangut system of five punishments comprises caning, flogging by cudgel, imprisonment, forced labor and death penalty, making the Tangut law the first in the Chinese legal family to distinguish short-term imprisonment from long-term imprisonment.ChapterⅢelaborates on two theses: one, the Tangut social economy dominated by their nomadic way of life and the formulation of Tangut livestock law; two, the Tangut military law system. The Tangut law provides stringent protection for government-run husbandry; it also provides detailed measures for the protection of both government-owned and privately-owned livestock as well as pasture and water source used for husbandry. Any breach of the livestock law is severely punished. The Tangut legal code Tiansheng Lüling features a well-developed livestock law system, which is in line with the characteristics of the Tangut people who are a dominantly nomadic nation. Furthermore, The Tangut state of Western Xia also has a well-developed military law system. For example, the military legal code Zhenguan Yujingtong (literally translated as Uniform Jade Mirror Code of the Zhenguan Reign), which is made during the reign of Emperor Chongzong of the Tangut Empire, clearly prescribes the behavior norms for Tangut soldiers from the perspectives of rewarding those who performed meritorious military service, punishing the guilty and promoting the victors; it also stipulates rules for matters pertinent to the assembly and march of the Tangut armed forces. The guiding principle of Tangut military law is "reward according to one’s merits and to reward and punish those who really deserve". The Jiansheng Lüling, which was composed during the reign of Emperor Renzong, includes a detailed military service system, which is formulated by revising the early military service system of the Tangut Empire, which strongly demonstrates the vigorous martial spirit of the Tanguts and their unique national characteristic of universal military service by the entire Tangut population.ChapterⅣexamines Tangut Religious Law and Ethnic Custom Law. This chapter is divided into two parts. The first part, which focuses on the Tangut religious law, begins with an introduction to the primitive religion practiced by ancient Tangut people. It proceeds to introduce the rise to prominence and prosperity of Buddhism in the Tangut Empire and the dependence of the Tangut rules on Buddhism; this chapter ends with a detailed discussion of the Tangut religious law system by elaborating on the administrative mechanism, title-conferring and costume-bestowing system, examination and recruitment of monks, identification and regulation of the monk population, as well as the privileges enjoyed and obligations borne by monks and Taoist priests in the Tangut empire. The Tangut state, on the one hand protects both Buddhism and Taoism, on the other hand, however, it exercises strict regulation on the two religions by setting both central and local administrative bodies for religious affairs. The Tangut state is the first regime in the Chinese history to use and confer the title of dishi (it means the highest title of buddhish monk which was given by the Tangut state). The second part of chapter four focuses on the Tangut custom law. It reviews such notions in the custom law as fuchou (vendetta), mengshi(oath), heduanguan (a lay officer who plays the role of both mediator and judge), peimingjia (a rough equivalent to the Germanic notion Wergeld, which a reparational payment usually demanded of a person guilty of homicide or other wrongful deaths), which are relics of ancient Tangut customs. The principle of hejie(compromise and settlement) which originates from Tangut customs is recognized and quoted in the section entitled "punishment for those who surrender themselves to justice or pay back what they owe shall be reduced by half of Volume Three of the Tiansheng Lüling; volume 14 of the same legal code provides that those who cause physical injury to another person may redeem himself by compensate the victim in kind, such as with cattle or sheep, which notion is inherited from ancient Tangut custom law.ChapterⅤdiscusses nongovernmental pacts between ordinary Tangut people and the protection provided by Tangut law for Tangut nongovernmental pacts includes, which include land sale pact, pawnshop pact and loan pact. The form of Tangut pacts is basically the same as that of nongovernmental pacts, with some minor differences. Like as provided by legal code of the Chinese Tang dynasty, the basis for Tangut nongovernmental pacts is consensus between the parties to the pacts, which consensus is protected by Tangut law. With a view to avert potential social problems caused by usury, Tangut law prescribes vigorous limitation on interest rate of loans.ChapterⅥfocuses on the litigation and judicial system of the Tangut Empire. The Tangut state has in place such organs as judicial organs, judicial system, litigation system and prison administration system to deal relevant litigation and judicial affairs. Tangut law explicitly provides limitations on the practice of inquisition by torture in criminal proceedings; it also stipulates that prisoners who are sick and female prisoners who are pregnant may apply for medical parole. In terms of prison administration, Tangut law stipulates and guarantees prisoners’ basic living conditions. All of the foregoing reflects the influence of the Confucian legal principle of "to be cautious with penalty and to be benevolent in governing" on the Tangut litigation and judicial system.ChapterⅦexamines Tangut Law of Domestic Relations. Tangut codes, which follow the Confucian legal principle of "taking family ethics as the core of law", attach great importance to li or rites as an important vehicle to maintain and regulate such domestic order as those between the senior and the junior, the elder and the younger, etc. As with the gradual feudalization of the Tangut society, the domestic relations system is becoming more and more mature, the Tangut legal code of Tiansheng Lüling finally establishes the Confucian family ethics as its guiding principle. By a review of how the law makers of the Tangut Empire integrate the Confucian mourning apparel system as well as punishment for breach thereof into Tangut law, and an analysis of the Tangut principle of classifying relatives and the indiscriminate appellation system for different groups of relatives, this chapter draws the conclusion that Tangut Empire has established the principle of distinguishing lineal relatives and collateral relatives and the principle of family hierarchy similar to those prevailing in contemporary mainstream Chinese dynasties, which services for the basis on which the Tangut people, who are nomadic and quite different from the ethnic Han Chinese who are the mainstream followers of Confucianism, come to accept the Confucian family ethics. However, the fact that a largely indiscriminate appellation system for different relatives still exists in the Tangut society indicates that some relics of the ancient customs of the Tangut people are still alive. A comparative research of provisions on mourning apparel system in Tangut legal codes reveals that the majority of the provisions on mourning apparel system in Tangut law are borrowed from legal codes, rites, orders, decrees and regulations of the Tang and Song dynasties, especially from the DaTang kaiyuanli(Code of Rites Composed during the Reign of Kaiyuan of the Great Tang Dynasty); a further comparison of the provisions on punishment for breach of the mourning apparel system in Tangut and Tang legal codes reveals that punishment prescribed in the former is far less severe than that in the latter, indicating that the Tangut takes a selective approach in absorbing the mourning apparel system of mainstream contemporary Chinese dynasties. This chapter also reviews the Tangut legal principle of "Tongju Gongcai" (family members living together shall share their property) and the adaptation made to relevant provisions borrowed from Tang and Song dynasties on the basis of the principle. As Tangut legal codes are deeply influenced by Confucian family ethics, the principle that those who refuse to inform against a family member who has committed a crime shall not be punished is enshrined in the Tangut legal code Tiansheng Lüling, which also rigorously forbids family members from violating each other’s rights. Privileges that originates from Confucian legal thought on relations between family members, such as the principle that the merits of ancestors may redeem or alleviate one’s crime and the principle that people no matter innocent or not may be punished for being related to or friendly with somebody who has been convicted of an offense are accepted and enshrined in Tangut legal codes.ChapterⅧanalyzes the influence of Confucianism on the Tangut Legal System. This chapter begins with an analysis of the reasons why Confucianism is able to exert such profound influence on the Tangut legal system: imitation by the Tangut rulers of the government system of mainstream Chinese dynasties and their veneration of Confucianism as practiced by mainstream Chinese dynasties, the inheritance of Confucianism in the writings by Tangut scholars, the influence of the Confucianism which is centered on "filial piety" on the social customs of the Tangut an changes in Tangut family structure. This chapter proceeds to discuss the influence of the Confucian principle of "being reverent to the sovereign, filial to one’s elder family members and esteem officials" on the Tangut legal system, the influence of the Confucian principle of "be cautious in punishing and be benevolent in governing" on the Tangut criminal adjudication system, the Confucian legal thought of "governing the state with moderate laws and punishing offences with temperate penalty", as well as the influence exerted by Confucianism on the prison administration and litigation system of the Tangut Empire.ConclusionThe conclusion further defines and condenses the viewpoint of the present dissertation; it proposes that the Tangut law is an integral component of the Chinese legal family in that the legislation of Tangut law is profoundly influenced by Confucianism, the backbone of traditional Chinese law; the Tangut legal system enriches and supplements the physiocratic nature of Chinese legal family. it also reviews the principle of the Chinese Legal family that both the legislative and judicial power shall rest with the central authorities of a state as is observed in the Tangut code Tiansheng Luling; The conclusion also argues that the codification format and the content of the Tangut legal code Tiansheng Luling is an innovation and development of Chinese legal family. All the foregoing leads to the conclusion that the Chinese legal family itself is an aggregation which combines the legal consciousness and legal principles of all ethnic groups, especially those of the Han ethnic group and that Tangut legal system, which is centered on the Tiansheng Luling is an integral component of Chinese legal family.更多还原