北宋末-南宋の法令に附された越訴規定について

Abstract

Yue-su 越訴, by-passing the court of proper jurisdiction, or to file a charge directly with a higher court without authorization thus by-passing the lower courts, had been forbidden in the Tang Code and after. But only in the Song, permission of the by-passing was often found in laws. When the staffs of the government office (Ya-men 衙門) were responsible, ordinary people were allowed to go directly to the upper court. Why did this exception exist in this period? Some scholars thought that the dynasty tried to protect ordinary people from local elites (Hao-min 豪民), but this argument cannot explain the fact that the principle of the Song jurisdiction system was still forbidding the by-passing, and that after the Yuan dynasty seemed to be no regulations similar to this. Out of proper analysis of Qing-yuan tiao-fa shi-lei 慶元條法事類, it is found that the regulations of permission were closely bound up with the ya-men staffs' act and were not meaningless. By this, the clerks and services were equally put on the side of persecutor, and the "popular houses" were the victims. Another interesting point is that in the Song these regulations really worked in the societies. It was reported that bad people used this law and caused the troubles, and not a few writers described that bad and strong people attacked the ya･mens for the reasons similar to Qing-yuan tiao-fa shi-lei. The reason why only in these periods these phenomena existed is that the Song government believed that they could control social conflict by themselves by law. In the contrary, the Ming and Qing stepped back to the principle of the Tang codes, which represented hierarchical order and were more distant from the actual relationship between the ya-mens and society. In the times of The Emperor xiao-zong 孝宗, Dao-xue 道學 scholars like Ye Shi 葉適 criticized this legal trend of the Song. The reason of existence of the regulations should not be explained by the dynasty's attitude to protect the commoner, but by the legal system itself.