存留养亲现实意义新探
发布时间：2018-10-26 13:29
【摘要】：“药家鑫案”可谓2011年影响较为重大之案件，人们当时探讨案件的心情无不愤慨，痛斥药家鑫“冷血无情”，如今案件过去已一年有余，再次探讨，抛却盲目情绪，回之冷静后，不禁思考“药家鑫案”是否真如此恶劣，药家鑫是否真非死不可？除案件本身情节外，从中国古代存留养亲制度来看待案件，是否会有不同的结果。 存留养亲是我国古代对判处徒、流、死之人，念其父母或祖父母年事已高，无成人子孙，又无期亲可照料生活，对这些犯人进行有条件的暂不执行刑罚，令其奉养尊亲属，待尊亲属终老后再执行原判刑罚或改判的一项刑罚执行制度。存留养亲在我国施行有一千四百年，其是儒家孝道思想的直接体现，也是由古代农业文化对劳动力需求的土壤孕育而生。清代沈家本修律弃之不用，延续至今，对其根源以及适用社会之探讨大多斥责其对礼法伦常的维护，不适于现今社会。然民族延续，思想延续，若非存留养亲有合理之处，其不会留存一千多年，是否这种制度纯粹糟粕需弃之不用，应联系现今社会深入探讨。 本文通过对“药家鑫案”的分析，以“药家鑫案”死刑立即执行的司法判决为研究背景，应用理论和案例相结合的方式，分析本案争议的焦点，进而引出所要论述的存留养亲制度，，分析存留养亲的历史沿革及意义。以我国特有的独生子女政策以及屡见不鲜的虐老案件为研究基础，论述存留养亲的现实意义。然后依据现有法律设置新的“存留养亲”模式。
[Abstract]:The "Yao Jiaxin case" can be described as the most important case in 2011. People were all indignant at the time when they discussed the case. They lambasted Yao Jiaxin for being "ruthless in cold blood." now it has been more than a year since the case, and it has been discussed again, giving up its blind mood. Back to calm, can not help thinking about the "Yao Jiaxin case" is really so bad, is it really necessary to die of Yao Jiaxin? Apart from the circumstances of the case itself, whether the case will have different results from the system of keeping and raising relatives in ancient China. In ancient China, a person sentenced to an act, a stream, or a dead person in ancient China, his parents or grandparents were of advanced age, had no adult descendants, and could take care of their living without any adult offspring. The prisoners were given conditional suspension of punishment, so that they could be nurtured and respected. A system of execution of an original sentence or a commutation of sentence after the death of a respected relative. It is a direct embodiment of Confucian filial piety thought, and it is also bred by the soil of ancient agricultural culture to the demand for labor force in our country for 1400 years. Shen Jiaben abandoned the law in the Qing Dynasty and continued to this day. Most of the discussions on its roots and applicable society criticized its maintenance of etiquette and law, which is not suitable for the present society. However, the continuation of the nation, the continuation of thought, if there is a reasonable place, it will not remain for more than a thousand years, whether this system pure dross need to be discarded, should be linked to the current society in-depth discussion. Based on the analysis of the case of Yao Jiaxin and the judicial decision of immediate execution of the death penalty in the case of Yao Jiaxin, this paper analyzes the focus of the dispute in this case by combining the theory with the case. Furthermore, the paper introduces the system of keeping and keeping relatives, and analyzes the historical evolution and significance of preserving and keeping relatives. Based on our country's unique one-child policy and the common cases of elder abuse, this paper discusses the practical significance of keeping and raising relatives. Then according to the existing laws set up a new "stay and foster parents" model.
【学位授予单位】：甘肃政法学院
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D929;D924
[Abstract]:The "Yao Jiaxin case" can be described as the most important case in 2011. People were all indignant at the time when they discussed the case. They lambasted Yao Jiaxin for being "ruthless in cold blood." now it has been more than a year since the case, and it has been discussed again, giving up its blind mood. Back to calm, can not help thinking about the "Yao Jiaxin case" is really so bad, is it really necessary to die of Yao Jiaxin? Apart from the circumstances of the case itself, whether the case will have different results from the system of keeping and raising relatives in ancient China. In ancient China, a person sentenced to an act, a stream, or a dead person in ancient China, his parents or grandparents were of advanced age, had no adult descendants, and could take care of their living without any adult offspring. The prisoners were given conditional suspension of punishment, so that they could be nurtured and respected. A system of execution of an original sentence or a commutation of sentence after the death of a respected relative. It is a direct embodiment of Confucian filial piety thought, and it is also bred by the soil of ancient agricultural culture to the demand for labor force in our country for 1400 years. Shen Jiaben abandoned the law in the Qing Dynasty and continued to this day. Most of the discussions on its roots and applicable society criticized its maintenance of etiquette and law, which is not suitable for the present society. However, the continuation of the nation, the continuation of thought, if there is a reasonable place, it will not remain for more than a thousand years, whether this system pure dross need to be discarded, should be linked to the current society in-depth discussion. Based on the analysis of the case of Yao Jiaxin and the judicial decision of immediate execution of the death penalty in the case of Yao Jiaxin, this paper analyzes the focus of the dispute in this case by combining the theory with the case. Furthermore, the paper introduces the system of keeping and keeping relatives, and analyzes the historical evolution and significance of preserving and keeping relatives. Based on our country's unique one-child policy and the common cases of elder abuse, this paper discusses the practical significance of keeping and raising relatives. Then according to the existing laws set up a new "stay and foster parents" model.
【学位授予单位】：甘肃政法学院
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D929;D924
【参考文献】
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