论我国古代“亲亲相隐”制度及其当代价值
发布时间：2018-08-31 17:24
【摘要】：中国古代“亲亲相隐”制度是封建社会维系政权的一项重要法制度和伦理原则。它不仅存在于我国古代社会,而且在外国历史和现代法律制度中也有所体现。然而,遗憾的是,新中国成立后,亲属容隐制度被视为封建糟粕而被废除。在一元化的意识形态中,一味强调大义灭亲、大公无私,亲属之间的各种自然亲情被忽视或扭曲。这种忽视亲情的价值观必然与我国当前社会所倡导的和谐价值观存在很大分歧。 在现代社会中,“亲亲相隐”制度仍然有其存在的合理理由和适用空间,它对社会主义法制文明、社会文明以及当前国家大力倡导的和谐社会建设起到不可忽视的作用。我们应该立足现代法律的多元价值视角,重新考量该制度,借鉴古今中外有益之处,更好地为我国法制现代化建设服务。 本文对“亲亲相隐”制度的阐述,分为四个部分展开： 第一部分,概述了古代“亲亲相隐”制度的基本理论。阐述了“亲亲相隐”制度的含义、产生、发展,使我们对亲属相隐制度有宏观、全面的了解；同时将该制度与西方亲属相隐制度进行比较,对比中西容隐制度发展的异同,分析亲属相隐制度在现代社会的可行性和实施该制度的意义。 第二部分,寻找“亲亲相隐”制度在自然法、刑法、诉讼法上的理论支持,具体论述现代法学理论中“亲亲相隐”制度存在的合理性。 第③部分,分析“亲亲相隐”的当代价值,结合我国构建和谐社会的理念,从“亲亲相隐”对社会和谐、司法和谐所具有的重要价值作出评价。其中对社会和谐的价值探讨,主要从政治、经济、文化三方面进行,政治上体现人权价值、社会稳定价值、防止潜在社会矛盾风险价值；经济上可以权衡社会宏观层面的经济性与司法成本的关系；文化上主要体现对传统文化的承继价值,不仅有利于传统家庭文化,还有益于传统社会关系稳定。在论述“亲亲相隐”对于司法和谐的价值问题上,则从公安机关、检察机关、法院三个司法主体在实践中的问题展开和谐价值分析,如,在公安机关的司法实践中,“亲亲相隐”有预防诱供、逼供、引发社会新矛盾的作用；在检察机关中,“亲亲相隐”符合“宽严相济”、“少捕慎捕”的检察政策；在法院司法审判中,“亲亲相隐”有利于刑事司法和解以及民事赔偿的实现。 第四部分,探究“亲亲相隐”制度对于现代社会的借鉴作用,提出在依法治国环境下实施“亲亲相隐”制度的具体方案和设想。
[Abstract]:In ancient China, the system of closeness between relatives and relatives was an important legal system and ethical principle for the feudal society to maintain political power. It exists not only in ancient society, but also in foreign history and modern legal system. Unfortunately, however, after the founding of New China, the system of relative concealment was abolished as a feudal dregs. In the monistic ideology, the emphasis is always on the elimination of relatives, unselfishness, and the neglect or distortion of the natural kinship between relatives. This kind of value of neglecting family affection must have great differences with the harmonious values advocated by our society. In modern society, there are still reasonable reasons and space for the existence of the system, which plays an important role in the construction of socialist legal civilization, social civilization and the harmonious society advocated by the state. We should base ourselves on the pluralistic value perspective of modern law, reconsider the system, draw lessons from the advantages of ancient, modern and foreign countries, and better serve for the modernization of our country's legal system. This paper expounds the system of "close relatives and close relatives hidden", which is divided into four parts: the first part summarizes the basic theory of the ancient system of "close relatives and close relatives hidden to each other". This paper expounds the meaning, emergence and development of the system of "closeness between relatives and relatives", which makes us have a macroscopic and comprehensive understanding of the system of relative concealment, and at the same time, compares the system with that of western relatives, and compares the similarities and differences between the development of the system of concealment and concealment between China and the West. This paper analyzes the feasibility of the relative concealment system in modern society and the significance of its implementation. In the second part, the author tries to find the theoretical support of the system in natural law, criminal law and procedural law, and discusses in detail the rationality of the existence of the system of "closeness between relatives and relatives" in modern legal theory. In the third part, the author analyzes the contemporary value of "closeness between relatives and relatives", combines the concept of constructing harmonious society in our country, and evaluates the important value of "concealment of relatives and relatives" to social harmony and judicial harmony. The value of social harmony is mainly discussed from three aspects of politics, economy and culture, which embody the value of human rights, social stability and prevent potential social contradictions. Economically, we can weigh the relationship between economy and judicial cost at the macro level of society, and the inheritance value of traditional culture is mainly reflected in culture, which is not only beneficial to traditional family culture, but also beneficial to the stability of traditional social relations. In discussing the value of "close relatives hiding" to judicial harmony, this paper analyzes the harmonious value of the three judicial subjects in practice, such as public security organs, procuratorial organs and courts, for example, in the judicial practice of public security organs. "intimate relatives" can prevent confessions, extract confessions, and lead to new social contradictions. In procuratorial organs, "close relatives and close relatives" are in line with the procuratorial policy of "lenient and strict punishment" and "less arrest and careful arrest"; and in the judicial trial of the courts, The concealment of relatives is conducive to the reconciliation of criminal justice and the realization of civil compensation. In the fourth part, the author probes into the reference function of the system of "closeness of relatives and relatives" to modern society, and puts forward the concrete plan and assumption of implementing the system of "closeness of relatives and relatives" under the circumstance of governing the country according to law.
【学位授予单位】：广西师范大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D929;D925.2;D924
本文编号：2215662
[Abstract]:In ancient China, the system of closeness between relatives and relatives was an important legal system and ethical principle for the feudal society to maintain political power. It exists not only in ancient society, but also in foreign history and modern legal system. Unfortunately, however, after the founding of New China, the system of relative concealment was abolished as a feudal dregs. In the monistic ideology, the emphasis is always on the elimination of relatives, unselfishness, and the neglect or distortion of the natural kinship between relatives. This kind of value of neglecting family affection must have great differences with the harmonious values advocated by our society. In modern society, there are still reasonable reasons and space for the existence of the system, which plays an important role in the construction of socialist legal civilization, social civilization and the harmonious society advocated by the state. We should base ourselves on the pluralistic value perspective of modern law, reconsider the system, draw lessons from the advantages of ancient, modern and foreign countries, and better serve for the modernization of our country's legal system. This paper expounds the system of "close relatives and close relatives hidden", which is divided into four parts: the first part summarizes the basic theory of the ancient system of "close relatives and close relatives hidden to each other". This paper expounds the meaning, emergence and development of the system of "closeness between relatives and relatives", which makes us have a macroscopic and comprehensive understanding of the system of relative concealment, and at the same time, compares the system with that of western relatives, and compares the similarities and differences between the development of the system of concealment and concealment between China and the West. This paper analyzes the feasibility of the relative concealment system in modern society and the significance of its implementation. In the second part, the author tries to find the theoretical support of the system in natural law, criminal law and procedural law, and discusses in detail the rationality of the existence of the system of "closeness between relatives and relatives" in modern legal theory. In the third part, the author analyzes the contemporary value of "closeness between relatives and relatives", combines the concept of constructing harmonious society in our country, and evaluates the important value of "concealment of relatives and relatives" to social harmony and judicial harmony. The value of social harmony is mainly discussed from three aspects of politics, economy and culture, which embody the value of human rights, social stability and prevent potential social contradictions. Economically, we can weigh the relationship between economy and judicial cost at the macro level of society, and the inheritance value of traditional culture is mainly reflected in culture, which is not only beneficial to traditional family culture, but also beneficial to the stability of traditional social relations. In discussing the value of "close relatives hiding" to judicial harmony, this paper analyzes the harmonious value of the three judicial subjects in practice, such as public security organs, procuratorial organs and courts, for example, in the judicial practice of public security organs. "intimate relatives" can prevent confessions, extract confessions, and lead to new social contradictions. In procuratorial organs, "close relatives and close relatives" are in line with the procuratorial policy of "lenient and strict punishment" and "less arrest and careful arrest"; and in the judicial trial of the courts, The concealment of relatives is conducive to the reconciliation of criminal justice and the realization of civil compensation. In the fourth part, the author probes into the reference function of the system of "closeness of relatives and relatives" to modern society, and puts forward the concrete plan and assumption of implementing the system of "closeness of relatives and relatives" under the circumstance of governing the country according to law.
【学位授予单位】：广西师范大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D929;D925.2;D924
【参考文献】
相关期刊论文 前6条
1 范忠信;亲亲相为隐:中外法律的共同传统——兼论其根源及其与法治的关系[J];比较法研究;1997年02期
2 江学;亲亲相隐及其现代化[J];法学评论;2002年05期
3 张炜东;;公安机关健全完善化解民众不满情绪及社会矛盾长效机制之探讨[J];公安研究;2010年12期
4 陈士果;;论亲亲相隐与刑事法治[J];管子学刊;2007年01期
5 王瑞娟;;论传统容隐制度的现代重构——从法学、伦理学的视角[J];怀化学院学报;2008年07期
6 范忠信;中西法律传统中的“亲亲相隐”[J];中国社会科学;1997年03期
相关硕士学位论文 前2条
1 胡谦;中国古代亲属容隐制度述论[D];陕西师范大学;2001年
2 郑小苗;亲亲相隐与期待可能性问题研究[D];苏州大学;2006年
，本文编号：2215662
本文链接：https://www.wllwen.com/falvlunwen/falilunwen/2215662.html
