试论清末“虚拟死罪”改革

发布时间：2018-09-07 13:21

【摘要】：虚拟死罪是清朝法律制度下的特有现象,它是指按律拟定死罪,而实际经过秋审却不获死刑之执行,按照惯例可得缓决或减免的一种情况。虚拟死罪的产生是基于清朝特有的法律制度,比如清朝立法将死刑执行分为立决与监候、完善的秋朝审等都为虚拟死罪的产生提供了条件。虚拟死罪的种类主要有戏杀、误杀、擅杀三种,本文对这三种犯罪历代的定罪量刑进行了梳理,并与清朝的立法规定进行对比,发现清朝对这三罪名的处罚较之明朝以前尤其是唐朝稍重,这也是虚拟死罪改革的内在原因之一。治外法权的丧失以及西方法律文化的传播促使清政府要制定与国际接轨的新法律,修律大臣在接受西方先进刑法观念与分析传统刑律的基础上提出了虚拟死罪的改革。改革删除了戏杀、误杀、擅杀的死刑监候规定,直接改为流刑或徒刑,虽然有人对改革提出了异议,但是清廷最终批准了改革并通过《大清现行刑律》的制定将改革成果法律化。改革的成功对清朝的制度建设与后世的思想观念具有重大意义。它促使清朝秋朝审进行改革,一系列的改革措施使秋审制度发生了重大变化,并最终退出历史舞台。虚拟死罪的改革还改变了当时人们的死刑观念,使清朝上层社会接受了西方先进的刑法思想,对以后的死刑制度的确立奠定了思想基础。
[Abstract]:Fictitious death penalty is a special phenomenon under the legal system of Qing Dynasty. It refers to a situation in which the death penalty is drawn up according to the law, but the execution of the death penalty is not obtained after the autumn trial, and can be suspended or reduced according to the convention. The emergence of virtual capital crime is based on the Qing Dynasty unique legal system, such as the Qing Dynasty legislation will be divided into the execution of the death penalty and prison, perfect Qiu court trial and so on for the emergence of the virtual death penalty conditions. There are three kinds of fictitious capital crime: play kill, manslaughter and tampering. This paper combs the conviction and sentencing of these three crimes in the past dynasties, and compares them with the legislation of the Qing Dynasty. It was found that the punishment of the three charges in Qing Dynasty was slightly heavier than that in the Ming Dynasty, especially in the Tang Dynasty, which was one of the internal reasons for the fictitious death penalty reform. The loss of extraterritorial jurisdiction and the spread of western legal culture prompted the Qing government to formulate new laws in line with international standards. The minister of law revision put forward the reform of fictitious death penalty on the basis of accepting the western advanced criminal law concept and analyzing the traditional criminal law. The reform has removed the death penalty prison provisions for murder, manslaughter, and changed them directly to live-sentence or imprisonment, although some people have raised objections to the reform. However, the Qing government finally approved the reform and legalized the achievements through the enactment of the current Criminal Law of the Qing Dynasty. The success of the reform is of great significance to the system construction of Qing Dynasty and the ideology of later generations. It prompted the Qing Dynasty to carry on the reform in the autumn court, a series of reform measures made the autumn trial system change greatly, and finally withdrew from the historical stage. The reform of fictitious death penalty also changed people's concept of death penalty at that time, made the upper class of Qing Dynasty accept the advanced western criminal law thought, and laid an ideological foundation for the later establishment of death penalty system.
【学位授予单位】：苏州大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D929;D924

【参考文献】