法學期刊
  • 社群分享
論著名稱: 法理與文采之間-讀《龍筋鳳髓判》(Between Writing Style and Legal Reasoning: An Interpretation on the Book “Lung-tsing-fong-sui Judgements” of the Tang Dynasty)
編著譯者: 黃源盛
出版日期: 2004.06
刊登出處: 台灣/政大法學評論第 79 期 /1-52 頁
頁  數: 30 點閱次數: 1175
下載點數: 120 點 銷售明細: 權利金查詢 變更售價
授 權 者: 黃源盛
關 鍵 詞: 判詞張鷟文理身言書判龍筋鳳髓判法律與文學
中文摘要: 傳統中國士人重科考,自唐以降,由禮部所主試的科舉考試之後,及第者要再經過吏部詮選,即省試後才能授官。而吏部考選的主要內容是所謂的「身」、「言」、「書」、「判」四事,其中尤以「判」為最關緊要。
所謂「判」,就是考察被試者如何處理獄訟。「判」的要求標準是「取其文理優長」,好奇的是,「文理」側重的究竟是事理?法理?還是文采?
當然,除了法理與文采之外,一篇好的「判」詞,還該包括些什麼?為什麼吏部的考試會採用駢文作為判詞的表達工具?假如是要考校文采,禮部的考試不也就考過了嗎?為什麼要禮部先考一次,吏部再考一次?何況,既然考的是「判」,重點到底應強調法律規範或法律推理,以其律學素養之高下作為任官的標準?抑或以其文學修辭的美醜作為授官的準則呢?
本文藉唐人張鷟的《龍筋鳳髓判》一書,例舉原典,對照律文,娓娓道出其間奧妙。從中,可以看到傳統「判詞」寫作範式的虛與實,也可以管窺唐朝法律文化中的文學與文學形式中的法律相互間的關係。

英文關鍵詞: legal writinglegal reasoningappropriation and excellence of judgmentsChang Jwo(張鷟)Tang Penal Codeliterature in legal culturetraditional China civil service examination
英文摘要: In China, from the Tang Dynasty until the late Qing Dynasty, the civil service examination had been a basically stable system to select the empire’s rank officials. It is beyond doubt that all the examination candidates committed full mental and physical abilities to pursuing success. After passing the examinations in districts and provinces, they would go to the national capital for the metropolitan examination, which was hold by the Board of Rites. If these had all been smoothly passed, they would go on to the final or palace examination, which was hold by the Board of Civil Services. Candidates, who could successfully pass the final entrance, would be immediately promoted to the starting rank of the highest level of the empire’s officialdom.
To compete in the final or palace examination, candidates had to have general learning of the classics and history. But there were additional areas in which they had to excel, because the Board of Civil Services had set down four standards to select the exact winners, which included “cultivation of oneself” (身), “manner of speaking” (言), “beauty and correctness of calligraphy” (書), and “appropriation and excellence of judgments” (判).
Of the four standards, the last one was the key to success. But it came with many problems such as follows: Was the “appropriation and excellence” referring to the truth of affairs, the reason of laws, or to the one which had been stressed in former stages, namely, the style of writing? If it was about the style of writing, why should candidates pass the metropolitan examination in advance and then repeat in the palace examination? What did “excellent judgments” include? Why had the parallel prose (p'ien-t'i-wen駢體文) been ordered by the Board of Civil Service to be part of the palace examination?
As “judgments” was the key point in the examination, the skill in laws and legal reasoning had to be emphasized at the same time. Then, why did the Board not order the candidates to work out “real judgments”, by which the “appropriation” could be proved, rather than “imitating judgments”, by which the style of writing was expressed, and taken to fit the standards of promotion of the true candidates?
The presented essay is for a reading and interpretation on the book “Lung-tsing-fong-sui Judgements”, which was written by Chang Jwo (張鷟) of the Tang Dynasty. By citing instances from the original text, I would like to make references to and comparison with the Tang Penal Code. Then, the false and true aspects in sentences of the traditional judgments may be discovered. We can also explore the mutual relations between the literature in legal culture and the law in literature of the Tang Dynasty.
目  次: 壹、序說
貳、《龍筋鳳髓判》作者其人及其成書
一、張鷟其人其書
二、《龍筋鳳髓判》內容要義
參、《龍筋鳳髓判》判詞問目的真實性問題
一、擬判乎?
二、實判乎?
肆、《龍筋鳳髓判》案例解析舉隅
一、關於洩漏機密罪案
二、關於崔暹奏事口誤罪案
三、關於奏狀誤失罪案
四、關於知制敕書有誤罪案
五、關於貪瀆罪案
六、關於收受賄賂罪案
七、關於不應言而上言罪案
八、關於犯夜罪案
九、關於違犯綱常名教罪案
十、關於合和御藥有誤罪案
伍、《龍筋鳳髓判》的評價
一、官定判例的經典之作
二、堆垛故事的浮判之詞
三、我的看法
陸、結語
相關法條:
    相關判解:
      相關函釋:
        相關論著:
          返回功能列