清代存留养亲的司法运用

发布时间：2018-04-09 05:13

本文选题：清代存留养亲　切入点：司法运用　出处：《南京师范大学》2011年硕士论文

【摘要】：存留养亲是犯人因犯徒、流及死罪,其祖、父母老疾无人侍养,受皇帝恩惠得例外缓刑或免刑,是我国传统社会为了解决子女被判徒、流和死刑而其祖、父母年老无人侍养而设立的一项制度。存留养亲的法律首见于北魏,经唐、宋、元、明各朝的承袭,一直到清代仍然保留。在规定有存留养亲的各朝法律中,清代的存留养亲规定是较为完备的,且形式多样,尤为难得的是它在现实社会中得到了前所未有的有效运用。清朝在继承明朝存留养亲律文的基础上,通过扩大条例的形式放宽了存留养亲的适用条件,并发展了富有特色的留养承祀制度,使存留养亲得到了有效运用。除此之外,清代存留养亲审查的内容广泛而细致,监督和防弊措施严格。总之,在司法运用中既有刚性法律的严格制约,又有温情的天理人情的左右,在不违反存留养亲律意的情况下,追求天理、国法和人情的高度融合,实现了对成文法的超越,实现了“形式化”和“实质化”的有机结合,这些对我国现代缓刑的司法运用如何改革,如何更好实现形式正义和实质正义有很大的借鉴意义。
[Abstract]:Keeping and raising relatives is a criminal who commits acts, flows and death crimes, whose ancestors, parents with old diseases are left unattended, and whose parents have received an exceptional reprieve or exemption from punishment under the favor of the emperor. It is the ancestor of our country's traditional society who, in order to solve the problem of children being sentenced to death, was sentenced to death, Liu, and the death penalty.A system in which parents are old and unattended.The law of keeping relatives was first found in the Northern Wei Dynasty, through the Tang, Song, Yuan, Ming dynasties inheritance, until the Qing Dynasty still retained.In the laws of each dynasty, the stipulation of keeping and keeping relatives in the Qing Dynasty was relatively complete and varied in form, which was especially rare because it had been used effectively in the real society.On the basis of inheriting the law of keeping and keeping relatives in Ming Dynasty, the Qing Dynasty relaxed the applicable conditions of keeping and keeping relatives through the form of expanding regulations, and developed the characteristic system of keeping foster and offering sacrifices, which made the saving and keeping relatives get effective application.In addition, the content of the examination of the retention and maintenance of relatives in the Qing Dynasty was extensive and meticulous, with strict supervision and prevention measures.In short, in the application of justice, there are strict restrictions of rigid law, but also the influence of warm nature and human feelings. In the case of not violating the law of keeping and keeping parents, the pursuit of a high degree of integration of nature, national law and human feelings has achieved the transcendence of statutory law.It realizes the organic combination of "formalization" and "materialization", which has great significance for reference to how to reform the judicial application of modern probation in our country and how to better realize formal justice and substantive justice.
【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

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