「鬪殺遇恩情理輕重格」考

Abstract

During the Song dynasty, amnesties were granted with remarkable frequency. Early in the dynasty, these amnesties had applied to incidents of bodily injury resulting in death (dousha 鬪殺), however, this category of crime was gradually excluded from the scope of amnesties. In the mid period of the reign of Zhenzong 眞宗, amnesties applied in cases "extenuating circumstances" (qingli kemin 情理可憫). In such a case, a death sentence could be reviewed by the emperor and reduced to a sentence of exile. In the period of Shenzong's 神宗 reign, the conditions for the review and reduction of sentence were changed to "circumstances of light gravity" (qingli qing 情理輕).A decision made on the basis of "extenuating circumstances" was subjective in nature, whereas one made on the basis of "circumstances of light gravity" was relatively objective. In the period during and after the reign of Zhezong 哲宗, it became the standard practice that a death sentence pronounced on a criminal to whom this condition pertained was reduced without review. Accordingly, it became necessary for prefectural officials to be able to determine to what patterns of behavior this condition was applicable. Under these circumstances, regulation for this was established and recorded in the Qingyuan Tiaofashilei 慶元條法事類. As a consequence, this work presents a far more detailed explanation of this crime than do similar provisions contained in the Tang Code 唐律. The account contained in the Qingyuan Tiaofashilei provides for the determination of the relative gravity of circumstances in two degrees: light and heavy and combines three degrees of injury (xiashou 下手) with two degrees of reason (li 理). The three degrees of injury comprise the means used to inflict injury, the position of the wound, and the state of the wound. These specifications are thus rather objective. However, the specification of two degrees of injury classified cases according to a category of "straight" (直) or "crooked" (曲). As such, this specification was subjective in nature, as it called for decisions to be rendered based on consideration of "extenuating circumstances". Because of this element of subjectivity inherent in such a specification, the scope and application of this condition tended to be expanded in consideration of the personal advantage of officials.