南宋地方衙門放告與保人
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Date
2010-12-??
Authors
劉馨珺
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Publisher
國立台灣師範大學歷史硏究所
National Taiwan Normal University Department of History
National Taiwan Normal University Department of History
Abstract
南宋時期，庶民打官司的情況更甚於前代，交易活動也較唐代頻繁。在司法訴訟的法令與實務上，許多方面都需要「保人」的保證，於是獄訟程序對於保人的規範要件日趨嚴格。由於獄訟制度相當講究「證據」，保證人在訴訟過程中必須入獄，遭受時間及精神的磨難，頗令人同情。宋朝為了改善獄訟，各類「取保」制度日趨完備。例如兩人毆殺發生命案時，「鄰保」要出面保任；投詞人到衙門告重罪，必須找專業書鋪「投保」人為證；入獄鞫勘之後，縣衙的禁歷登錄一向不切實際，吏卒使用如「到頭、押下、直攔、監保」等等各種名目，任意且臨時性監禁平民，由於屬於「寄收」、「門留」的項目，不必送呈禁曆到上級衙門，致使入獄者「門留鎖押及私監凍餓，動有性命之憂」。當衙門偵查爭訟案件告一段落時，滯縣的兩造若經由保人保識而無走竄之虞，詞人可以回「本家」或被「押下所屬」知在，或是「取保」知在；涉案犯罪人不能隨意放任行動，應該有負責「知管」的耆保、鄰保及里正。地方官吏到鄉村拿取文狀或查證時，也必須召集鄰保當眾供寫、讀示與繫書（簽字）；若是當事人無力找保人，卻又貧病交迫不堪繫獄，地方衙門則會指定「保識」的保正與保長。本文透過地方衙門開放告訴的日程運作，進一步探討各類「保」人的相關規定，從中觀察保人在獄訟程序中的角色，以及了解保人制度是南宋地方行政與秩序的要事之一。
In the South Song Dynasty, the trade prospered and common people litigated more often than people of the Tang Dynasty. Due to the judicial regulations and practices and many other aspects, the guarantor became more necessary. During the litigation, the deponent had to be imprisoned for the“preservation of evidence. ”The deponent suffered both mentally and physically, and their piteous torture pushed the Song government to ameliorate the process of litigation, and thus the regulation for guarantee gradually matured. When two people fought and committed a homicide case, their neighbor had to be the guarantor; If the litigant went to the government office to file a severe lawsuit, that person had to find a professional petition and legal document writer to be guarantor and to vouch for the testimony of the litigant; after a suspect was questioned, the suspect also needed a guarantor to post one's bail; If the local government official needed to get an indictment or investigate a case, the neighbor who was the guarantor had to write a statement, announcing and signing it right on the spot. When there were disputes over business, but the litigant couldn't find himself a guarantor and was too poor or too weak to be imprisoned, the local government had to appoint a local employee to be his guarantor. Henceforward, the various kinds of guarantors became like a system to protect the social order. By examining when and how the government office was open for filing lawsuits, this thesis discusses the regulations imposed on each kind of“guarantors” and further analyzes the role the guarantor played in the process of legal dispute. This paper seeks to gain a fuller understanding of the work of local administration and how the local administration preserved order in the South Song Dynasty.
In the South Song Dynasty, the trade prospered and common people litigated more often than people of the Tang Dynasty. Due to the judicial regulations and practices and many other aspects, the guarantor became more necessary. During the litigation, the deponent had to be imprisoned for the“preservation of evidence. ”The deponent suffered both mentally and physically, and their piteous torture pushed the Song government to ameliorate the process of litigation, and thus the regulation for guarantee gradually matured. When two people fought and committed a homicide case, their neighbor had to be the guarantor; If the litigant went to the government office to file a severe lawsuit, that person had to find a professional petition and legal document writer to be guarantor and to vouch for the testimony of the litigant; after a suspect was questioned, the suspect also needed a guarantor to post one's bail; If the local government official needed to get an indictment or investigate a case, the neighbor who was the guarantor had to write a statement, announcing and signing it right on the spot. When there were disputes over business, but the litigant couldn't find himself a guarantor and was too poor or too weak to be imprisoned, the local government had to appoint a local employee to be his guarantor. Henceforward, the various kinds of guarantors became like a system to protect the social order. By examining when and how the government office was open for filing lawsuits, this thesis discusses the regulations imposed on each kind of“guarantors” and further analyzes the role the guarantor played in the process of legal dispute. This paper seeks to gain a fuller understanding of the work of local administration and how the local administration preserved order in the South Song Dynasty.