唐代赎刑制度研究

发布时间：2018-02-15 02:29

本文关键词： 唐代赎刑身份赎非身份赎历史地位现代意义　出处：《南京师范大学》2011年硕士论文　论文类型：学位论文

【摘要】：先秦时期产生的赎刑制度经过历代的发展在唐代趋于完善,并且为后世模本一直存续至清末。历史久远的赎刑制度起到了不容小觑的作用,它在一定条件下可以替换不仁道的五刑,它的长期存在证明了古代并不全是残酷的刑罚,改变了古代刑罚的传统形象,纠正了人们对传统法律的固有观念及心理。唐代赎刑有着可见的多样的法律渊源和完善的法律规定,这是前代赎刑所无法比拟的。通过梳理各种渊源中有关赎刑制度的法律规定,可以得出唐代赎刑是一项结构化、体系化的法律制度,具备实体性规范,而且还具备可操作性的程序规定。它在实体上虽然依附于正刑但在程序上则是完全独立的。唐代赎刑可以分为身份赎和非身份赎两类,这一分类有利于区分出赎刑的合理内核以及不合理之处。身份赎主要是由议、请、减等贵族官员及其亲属即有“身份”的人所适用的赎刑,但不能因此断定赎刑就是一种特权制度,因为身份赎本身存在不适用的例外,而且它在整个封建法特权体系中处于边缘位置,司法实践中也往往弃而不用,所以不宜夸大赎刑的特权色彩。相反,赎刑的特权性在非身份赎存在的情况下进一步被弱化了,非身份赎主要包含老幼疾赎、过失赎、疑罪赎等不以身份来决定适用与否的各种情形,可为普通人所适用,只要符合一定的条件。经比较,身份赎与非身份赎之间存在着发展历程、历史作用、实体、程序等方面的差异,而且非身份赎的影响力甚至要超过身份赎。总之,唐代赎刑制度所具备的详细规定、合理分类集前代之大成且影响后世深远,它的历史地位可见一斑,因此更应该对其作出客观公正地评价。唐代赎刑制度存在不合理的一面,即身份赎所具有的特权性,虽然有所减弱但有违现代法律理念,应予以剔除。除去身份赎之后的赎刑制度就只有非身份赎,它有着合理的一面,值得深入挖掘,其所蕴含的慎刑、罪过观念以及量化技术也具有一定的现代意义。
[Abstract]:The foreclosure system produced in the pre-Qin period tended to be perfected in the Tang Dynasty through the development of the past dynasties, and continued to exist for later generations until the end of the Qing Dynasty. The foreclosure system with a long history played an important role. Under certain conditions, it can replace the unkind five punishments. Its long-term existence has proved that the ancient times were not all cruel punishments, and changed the traditional image of ancient punishments. It corrects people's inherent ideas and psychology about traditional law. In the Tang Dynasty, the foreclosure penalty had a variety of legal sources and perfect legal provisions. This is unparalleled by the previous foreclosure. By combing the legal provisions of the foreclosure system in various sources, it can be concluded that the Tang Dynasty foreclosure is a structured, systematic legal system with substantive norms. There are also operational procedural provisions. Although it is physically dependent on the proper punishment, it is completely independent in procedure. The Tang Dynasty foreclosure can be divided into two categories: identity foreclosure and non-identity foreclosure. This classification is helpful to distinguish between the reasonable core and the unreasonableness of the foreclosure. The foreclosure is mainly the punishment applicable to the nobility officials and their relatives who have "status". But it can not be concluded that foreclosure is a kind of privilege system, because there is an exception which is not applicable to the status redemption itself, and it is marginalized in the whole system of feudal law privilege, and it is often abandoned but not used in the judicial practice. On the contrary, the privilege of foreclosure is further weakened under the condition of non-status foreclosure. The non-status foreclosure mainly includes the atonement of the old and the young, the negligent foreclosure. All kinds of circumstances, such as guilt of suspicion, which do not decide whether it is applicable or not based on identity, can be applied by ordinary people as long as they meet certain conditions. By comparison, there is a course of development, a historical role and a entity between identity foreclosure and non-identity foreclosure. There are differences in procedures and other aspects, and the influence of non-status foreclosure is even greater than that of identity foreclosure. In short, the detailed provisions of the foreclosure criminal system in the Tang Dynasty are of great success in the previous generation and have far-reaching impact on later generations, and its historical status can be seen. Therefore, it should be evaluated objectively and impartially. There is an unreasonable aspect in the system of redeeming punishment in the Tang Dynasty, that is, the privilege of identity foreclosure is weakened, but it violates the modern legal idea. The system of foreclosure after removing the status foreclosure is only non-status foreclosure. It has a reasonable side and is worth digging deeply. The cautious punishment, the concept of sin and the quantitative technology contained therein also have certain modern significance.
【学位授予单位】：南京师范大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D929;D924

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