唐律“格杀勿论”渊流考

"格杀勿论"在《唐律》中有3条:第一,允许主家登时格杀"夜无故入人家";第二,允许将吏可以格杀持杖拒捕者或逃犯;第三,允许"旁人"在捕格贼盗、强奸、和奸案时将拒捕者格杀。唐律"格杀勿论"渊源于秦汉甚至更早的法律,经过宋元时期的发展,明律删除"傍人皆得捕系"条,又增加"杀死奸夫"的法律规定。清代,"杀死奸夫"的律条通过不断地增修条例,使奸案中"格杀勿论"的条款更加纷繁复杂。

The Source of"Kill on the Spot without Further Admission"in the T'ang Code

Three articles can be found in the T'ang Code concerning doctrine of "kill on the spot without further admission:" 1) the owner of a dwelling is authorized to kill on the spot those who break into the dwelling without cause;2) the officer and official can kill on the spot those who resist arrest with arms or fugitives;and 3) "a disinterested person" is empowered to kill those who resist arrest on the crime scene of robbery,theft,rape or adultery.The source of the provisions can be traced back to the laws in the Qin or Han Dynasty or even earlier.In the Song and the Yuan Dynasties the doctrine kept evolving and to the Ming Dynasty,the third provision aforesaid was repealed while "kill on the spot adulterer" was added.In the Qing Dynasty,the provision "kill adulterer" kept amending and consequently there appeared a variety of provisions related to "kill on the spot without further admission" in the case of adultery.