“准五服以制罪”在两晋司法中的应用

发布时间：2018-04-16 17:12

本文选题：准五服以制罪 + 亲属相犯　；参考：《西南政法大学》2011年硕士论文

【摘要】：丧服之制由来已久,最初表达的是对逝去亲人的哀痛与敬畏之情,后西周统治者将其与宗法之制联系起来,并注入了“尊尊大义”。春秋战国之际因儒家的极力推崇与完善,丧服之制开始上升到礼法层面,最终形成《仪礼·丧服》。汉礼法结合的进一步深入,终于西晋时得以形成定制——“准五服以制罪”。本文以两晋时期为考察视角,在现存史料的基础上,对“准五服以制罪”原则在该时期的司法应用进行梳理,集中围绕亲属相犯、亲属株连、亲属容隐和“八议”几个方面展开,力求全面地认识和把握“准五服以制罪”这一司法原则的实质与精髓。文章分为四大部分。第一部分,笔者对“准五服以制罪”的概念进行简要的说明。包括了两重涵义,一是展示此项原则在量刑上的具体操作规则;二是从价值层面上对其深入剖析,笔者归纳有三:“准五服以制罪”蕴含了尊卑、长幼、男女有别的等级观念,此其一;其二,作为处理亲属间犯罪的一项司法原则,又反映了一种人与人之间的法律关系;最后,“准五服以制罪”的实质乃同罪异罚。第二部分,是对“准五服以制罪”形成的原因进行考究,“亲亲”“尊尊”乃是贯穿于古代礼制的核心精神,亲亲重宗亲轻外亲,尊尊恪守尊祖敬宗的原则,两者是以服制定罪的礼制基础;同时,汉以来的礼法结合运动也孕育着其产生;此外,儒学者对于丧服的研究热情亦为其提供了理论基础。第三部分,是本文重点着墨之处,主要讨论了“准五服以制罪”的司法应用,笔者从亲属相犯、亲属株连、亲属容隐、八议几个方面切入,籍以同时代案例进行分析,探讨服制在司法领域对定罪量刑的效能。首先,亲属相犯涉及的范围包括卑犯尊(包括子女骂詈、殴打杀伤父母,子女不孝父母,妻犯夫),以及尊犯卑(父母杀害子女、夫犯妻)。亲属株连部分,两晋时期主要表现在谋反重罪中的“夷三族”刑;同时,受到“降服”思想的影响,两晋关于“已出之女”是否受生父株连的规定也处于不断的流变中;除了上述谋反等重罪要株连外,晋仍有因“劫”罪而受牵连的案例。其次,关于容隐,与“准五服以制罪”一样,均是为了维护古代伦理纲常,容隐强调的是亲属间不得互证,“准五服以制罪”则是对破坏伦理行为的纠正。据史料记载,两晋时期容隐主要存在于祖父母与孙子女、父母与子女、兄弟姊妹之间,反应在服叙上则是关系密切的斩衰亲和齐衰亲。最后,从八议之中也可找到服制的依据,集中体现在“议亲”的范围上。以上均是司法中适用“准五服以制罪”的体现。第四部分,是对全文的总结。“准五服以制罪”在漫长的古代社会中历代流传,成为中华司法传统的重要组成部分,它尊重伦常,弘扬人性的价值理念是值得借鉴吸收的。
[Abstract]:The system of mourning clothes has a long history. At first, it expresses the feelings of sorrow and awe to the deceased relatives. The rulers of the Western Zhou Dynasty connected it with the patriarchal system and injected "respect for the great righteousness".During the Spring and Autumn period and warring States period, the system of mourning began to rise to the level of etiquette and law because of the strong esteem and perfection of Confucianism.The further deepening of the combination of Han etiquette and law, the Western Jin Dynasty was able to form a custom-"quasi-five uniforms in order to system crime."From the angle of view of the Jin Dynasty and on the basis of the existing historical data, this paper combs the judicial application of the principle of "quasi-five servitude to crime" in that period, focusing on the relatives who commit crimes in the same period.In order to fully understand and grasp the essence and essence of the judicial principle of "quasi-five servings in order to control the crime", the relatives' concealment and "eight discussions" are carried out.The article is divided into four parts.In the first part, the author gives a brief explanation of the concept of "quasi-five servitude in order to make a crime".It includes two meanings, one is to show the concrete operation rules of this principle in sentencing, the other is to analyze it in depth from the value level. The author concludes that there are three levels: "Quasi-five costumes to control the crime" contains the idea of rank of inferiority and superiority, long and young, and different men and women.Second, as a judicial principle to deal with crimes between relatives, it reflects a kind of legal relationship between people.The second part is to study the reason of the formation of "quasi-five servitude in order to control sin". "kinship" and "respect" is the core spirit that runs through the ancient ritual system, the kinship attaches importance to the patriarchal relatives and neglects the external relatives, and respects the principle of respecting the ancestors and respecting the ancestors.At the same time, the movement of the combination of etiquette and law since the Han Dynasty also gave birth to it. In addition, the enthusiasm of Confucian scholars for mourning also provided a theoretical basis.The third part is the focus of this paper, mainly discusses the judicial application of "quasi five clothes to make crimes", the author from relatives to commit crimes, relatives plant, relatives to hide, eight aspects of the discussion of the analysis of the case of the same era.This paper discusses the effectiveness of service system in the field of judicial conviction and sentencing.First of all, the scope of kinship offenses involves abomination (including abusive abuse by children, beating and wounding parents, unfilial parents, wife and husband), and inferiority (parents killing children, husbands committing crimes).At the same time, under the influence of the thought of "surrender", the provisions of the Jin Dynasty on whether the "daughter has already been born" by the biological father, Zhoulian, are also in constant change, while the punishment of "three Yi people" in the period of the Jin Dynasty is mainly reflected in the punishment of "Yi three people" in the felony crimes of the two Jin dynasties.In addition to such felonies as the rebellion, Jin is still implicated in the crime of robbery.Secondly, the concealment, like the "quasi-five-suit to crime", is to maintain the ancient ethical principles, which emphasizes that relatives should not testify against each other, and "quasi-five-suit to make the crime" is the correction of the destructive ethical behavior.According to historical records, in the Jin Dynasty, the concealment mainly existed between grandparents and grandchildren, parents and children, brothers and sisters.Finally, the basis of service system can also be found from the eight discussions, which is embodied in the scope of "negotiation of relatives".All above are the embodiment of the application of "quasi-five servings to the system of crime" in the administration of justice.The fourth part is the summary of the full text."the quasi-five servitude of crime" has been spread throughout the long ancient society and has become an important part of the Chinese judicial tradition. It is worth drawing lessons from and promoting the value concept of human nature.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D929

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