礼法论争中的失踪者:赫善心的生平与思想

发布时间：2018-08-19 10:18

【摘要】：赫善心是德国在青岛建立的青岛特别高等专门学堂(俗称德华大学)法政科的法律讲师,除了他的中文名字和他所撰写的《中国新刑律论》,中国学者长期以来对他所知甚少。他在清末修律的过程中对保守派持支持的立场,被有的学者批判为是违背了良心。近年新发现的赫善心的档案资料和他的著述证实了中国学者对这位法律史上失踪者的批判有失偏颇。事实上,他与作为改革派顾问的日本学者冈田朝太郎同为德国刑法巨擘李斯特的弟子,而他本人还是20世纪初期德国法学界在研究法律技术方面的重要学者。在当时德国立法法学兴起的大背景下,他对于中国清末修律方向和原则发表的看似保守的观点,完全源自于他的学术自信。他的思想实质上与19世纪后期德国自然主义法学的立场有关,并且建立在对德意志数百年来引入外国法历史经验的总结基础上,因此是有理有据,严肃真诚的。
[Abstract]:He Shanxin is a law lecturer in the Law Department of Qingdao Special higher School (commonly known as Dehua University) established by Germany in Qingdao. Apart from his Chinese name and his "the New Criminal Law of China", Chinese scholars have known him very little for a long time. His support for conservatives in the process of law revision in the late Qing Dynasty was criticized by some scholars as a violation of conscience. The newly discovered archives and his writings confirm that the Chinese scholar's criticism of the missing man in the history of law is biased. In fact, he was a disciple of the German criminal law giant Liszt along with the Japanese scholar Taro Okada, who was also an important scholar in the field of legal technology in Germany in the early 20th century. Against the background of the rise of German legislative jurisprudence at that time, his seemingly conservative views on the direction and principles of law revision in the late Qing Dynasty came from his academic self-confidence. His thought is essentially related to the position of German naturalistic jurisprudence in the late 19th century and is based on the summary of the historical experience of introducing foreign law into Germany over the past several hundred years, so it is reasonable and serious and sincere.
【作者单位】：西南财经大学法学院;
【分类号】：D909

【参考文献】