從給舍封駁論南宋刑事政令頒行

宋代「司法」與「政務運行」並不是新穎的研究課題，歷來法制史、制度史學人於此積累了相當豐碩的成果，但多數研究或未將決策體制納入視野，或以單一部門概括政務整體，仍有進一步推進的空間。如何在把握制度總體框架的同時，探究六部分工中的「刑」，是本文的主要研究目的。　　本文以南宋給舍（中書舍人、給事中）為中心，從「制度」、「案例」、「文書」三個視角分別探究「刑事政令」──即由刑獄機關擬議、皇帝裁可、給舍簽押的命令公文──於制度框架中的運作情況。　　地方奏上的獄案需要經過一道道分流機制篩選，受各級機關逐層審理，經皇帝裁可後還需要經由給舍簽押、審核，才能成為「刑事政令」下達執行。這些進入決策體制「高端」的案件，涵蓋類別多樣，「確立刑罰」僅是其中之一，故「刑事政令」並不完全等同現代的「審判」，而應將之理解為綜合性的決策方式。以「確立刑罰」案例而言，給舍的處置原則大抵符合「敕、律、令」規定，而地方訴訟案件中常見的「天理」、「人情」，則較少發揮作用。當「刑事政令」經給舍簽押後，便會形成以「年號＋月＋日」為名的「敕」頒降執行。這些「敕」需要經過特定程序，如被選編為「斷例」，或是修入「敕、令、格、式」，才能長保效力。

關鍵字

南宋；給舍；刑事政令；古代司法；政務運行

並列摘要

Although the issue concerning the administration of justice and government of Song dynasty is not a novel topic, there are still several fields that can be advanced. Previous studies have attained considerable achievement, though, most of them either failed to take policy-making system into consideration, or generalized the whole administrative system by one single department. Therefore, the main motif of this thesis is to hold a panoramic view on the entirety of institution while comprehend the Xing [sanction(s)] under Six Ministries System. This thesis will focus on the Ji She during the Southern Song dynasty, including Zhong Shu She Ren [the supervising secretary], and Ji Shi Zhong [the secretariat drafter], and unfold the discussion by three dimensions: institution, cases and official document. This will help us clarify how Xing Shi Zheng Ling [judicial decree(s)], which including the proposals of judiciary authorities, the verdicts of the emperor and the affirmation of the Ji She, was operated in the government. Provincial criminal cases were selected by triage mechanism and viewed hierarchically. Only after the verdicts of the emperor and the affirmation of Ji She, the disposes of the cases would be issued as Xing Shi Zheng Ling. Various categories could be found in these “high level” cases and the “establishment of punishment” was merely one of them. Therefore, the Xing Shi Zheng Ling should be regarded as a comprehensive method of policy-making rather than modern judicial sentences. As for the category of “establishment of punishment”, the disposes of Ji She would accord with the spirit of Chi Lv Ling, while the Li (Principle) and Qing (Compassion), which were frequently taken into consideration in provincial judgment, were barely effective. After the affirmation of the Ji She, these Xing Shi Zheng Ling would be archived by reign title + month + date and be enforced as Chi [decree(s)]. These Chi required certain procedures, such as selected by Duanli or Chi Ling Ge Shi, in order to keep long-term effectiveness.