从潘金莲案析宋代通奸罪
发布时间：2018-07-16 20:55
【摘要】：法律与文学运动兴起于美国。“从文学中了解法律”是该研究思潮的一个重要的方法论视角,其目的在于研究文学作品中所反映出来的法律,思考其中的法律理论与法律实践问题。《水浒传》中潘金莲案作为一个经典的故事为大众所熟知。从传统文化的视角来看,潘金莲被视为一个荒淫无度的反面人物,历来为世人所不齿；而武松作为一名顶天立地、敢作敢为的汉子,其行为一直为世人所称颂。而站在法律和文学的角度看,潘金莲案则不再是个简单的正义战胜邪恶的文学故事,而是一起引人深思的法律事件。通过运用文献研究、历史背景剖析、实证分析和比较分析等方法,可以找出这起法律事件背后隐藏着的诸多法律问题。通奸行为指的是男女双方没有夫妻关系而发生性行为(多指一方或双方已有配偶),它是一种客观存在的社会现象。在潘金莲案所处的宋代,统治阶级制定了通奸罪,将其纳入到刑法调整的范围,并且分别从实体和程序方面对其进行了规范。换言之,在潘金莲案中,通奸罪具有可适用性,但偏偏未能适用,并导致了悲剧的产生。当代社会,通奸现象时有出现,对于通奸行为是否入罪,曾引起过广泛的争议。到今天为止,仍有不少国家将通奸行为定罪处罚。我国自建国初期便废除了通奸罪,将其纳入到道德调整的范围,只有在特定情况下才将其规定为犯罪,如破坏军婚罪等。当今许多国家将通奸行为纳入到民法调整的范围,并取得了较好的效果,这对我国如何应对通奸行为应该具有重要的借鉴意义。
[Abstract]:The movement of law and literature sprang up in the United States. "understanding the Law from Literature" is an important methodological perspective of this research trend. Its purpose is to study the law reflected in literary works. Considering the legal theory and legal practice, Pan Jinlian case is well known as a classic story in Water margin. From the point of view of traditional culture, Pan Jinlian is regarded as an abominable villain, who has always been disparaged by the world. From the point of view of law and literature, Pan Jinlian case is no longer a simple literary story of justice over evil, but a thought-provoking legal event. By using the methods of literature research, historical background analysis, empirical analysis and comparative analysis, we can find out many legal problems hidden behind this legal event. Adultery refers to the occurrence of sexual behavior between men and women without a marital relationship. It is an objective social phenomenon. In the Song Dynasty of Pan Jinlian case, the ruling class established the crime of adultery, brought it into the scope of the adjustment of criminal law, and regulated it from the aspect of entity and procedure. In other words, in Pan Jinlian's case, the crime of adultery is applicable, but it is not applicable, which leads to tragedy. In contemporary society, adultery occurs from time to time, which has caused widespread controversy as to whether adultery is criminalized. So far, many countries have convicted and punished adultery. Our country has abolished the crime of adultery since the beginning of the founding of the people's Republic of China and brought it into the scope of moral adjustment. Only under certain circumstances can it be defined as a crime, such as the crime of destroying military marriage, and so on. Nowadays, many countries bring adultery into the scope of civil law adjustment, and have achieved good results, which should be used for reference in how to deal with adultery in our country.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D929;D924.3;I207.412
本文编号：2127645
[Abstract]:The movement of law and literature sprang up in the United States. "understanding the Law from Literature" is an important methodological perspective of this research trend. Its purpose is to study the law reflected in literary works. Considering the legal theory and legal practice, Pan Jinlian case is well known as a classic story in Water margin. From the point of view of traditional culture, Pan Jinlian is regarded as an abominable villain, who has always been disparaged by the world. From the point of view of law and literature, Pan Jinlian case is no longer a simple literary story of justice over evil, but a thought-provoking legal event. By using the methods of literature research, historical background analysis, empirical analysis and comparative analysis, we can find out many legal problems hidden behind this legal event. Adultery refers to the occurrence of sexual behavior between men and women without a marital relationship. It is an objective social phenomenon. In the Song Dynasty of Pan Jinlian case, the ruling class established the crime of adultery, brought it into the scope of the adjustment of criminal law, and regulated it from the aspect of entity and procedure. In other words, in Pan Jinlian's case, the crime of adultery is applicable, but it is not applicable, which leads to tragedy. In contemporary society, adultery occurs from time to time, which has caused widespread controversy as to whether adultery is criminalized. So far, many countries have convicted and punished adultery. Our country has abolished the crime of adultery since the beginning of the founding of the people's Republic of China and brought it into the scope of moral adjustment. Only under certain circumstances can it be defined as a crime, such as the crime of destroying military marriage, and so on. Nowadays, many countries bring adultery into the scope of civil law adjustment, and have achieved good results, which should be used for reference in how to deal with adultery in our country.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D929;D924.3;I207.412
【参考文献】
相关期刊论文 前4条
1 熊飞;;“团头”小考[J];辞书研究;1985年03期
2 刘云林;道德法律化的学理基础及其限度[J];南京师大学报(社会科学版);2001年06期
3 何俊萍;论婚姻家庭领域道德调整与法律调整的关系──兼谈对婚外恋的道德调整和法律调整[J];政法论坛;2000年03期
4 贺卫方;;中国古代司法判决的风格与精神——以宋代判决为基本依据兼与英国比较[J];中国社会科学;1990年06期
相关博士学位论文 前1条
1 徐昕;论私力救济[D];清华大学;2003年
，本文编号：2127645
本文链接：https://www.wllwen.com/falvlunwen/falilunwen/2127645.html
