清代“投匿名文书告人罪”律例研究

发布时间：2018-11-11 19:00

【摘要】：当前，我国立法对匿名检举并未加以禁止，也即默认匿名检举的法律效力。然而，中国古代却一直严禁匿名举报，并且将“投匿名文书告人罪”定为罪名，匿名举告者处死，受理者有罪，捕获者有赏。古代立法为何会做出此种规定，其内在根源如何，其实际效果如何，颇值探究。清代“投匿名文书告人罪”法律体系，由律、条例、事例、则例、成案、告示等组成，立法体系极为庞杂。但就其核心内容而言，即在严禁匿名告诉。匿名文书，见者即毁；对匿告之案不得受理，并不得上闻；并且在连人与文书一起捉获的情况下，以绞刑重惩匿告者；被告者则无论所告虚实，皆不坐罪。在一定时期，对此类犯罪实行过严打，最高刑罚有立即正法并罚没财产。嘉庆时期新增条例，凡是所告内容“关系国家重大事务”的，可以上闻，候旨密办。按照“投匿名文书告人罪”律例的规定，，可以将该罪立法所规定的罪名区分为基本罪名、延伸罪名、扩展罪名。对“投匿名文书告人罪”罪名及其内在逻辑的分析，是深刻理解该罪的法律适用和全面认识“投匿名文书告人罪”问题的基础，也是当时立法水平的表现。清“投匿名文书告人罪”法规虽然系统，但也有矛盾之处，尤其是“国家重大事务”条款出现以后，匿名揭告曾经盛行，以致成为当时社会的痼疾之一。这一是因为法律自身的弊病；二是统治者制定的法律，往往却被统治者率先破坏；三是官僚政治难以克服的弊端；四是缺乏实名举报的保护机制；五是民主化、法制化的决策机制的匮乏。除此之外，还有许多可以探讨的问题。禁止匿名揭告的立法，在中国能够存在二千多年，自有其合理性。古人能够认识到匿名揭告弊大于利，并通过法律予以禁止，说明这是符合社会需要的。时至今日，匿名书信检举仍然没有退出历史舞台。通过对清“投匿名书告人罪”律例的研究，在总结历史经验的基础上，本文认为，用匿名书信的方式揭发检举不能提倡，而且应该有相应的处罚以加以限制；同时，在严格限制匿名揭告的基础上，完善实名举报的保护机制，给人以言论自由的社会环境，使匿名揭告没有生存的市场，才是解决问题的根本方法。
[Abstract]:At present, the legislation of our country does not prohibit anonymous whistleblower, that is, the legal effect of acquiescence anonymous whistleblower. In ancient China, however, anonymous reporting has been strictly prohibited, and the crime of "casting anonymous documents against a person" has been regarded as a crime. Those who report anonymously are executed, those who accept it are guilty, and those who are caught have a reward. It is worth exploring why the ancient legislation made such a provision, its internal root, its actual effect. In Qing Dynasty, the legal system was composed of laws, regulations, examples, rules, cases, notices and so on, and the legislative system was extremely complicated. But as far as its core content is concerned, it is forbidden to tell it anonymously. Anonymous documents are destroyed if they see them; the case of false accusation is inadmissible and shall not be heard; and in the case of a person who is caught together with the document, he shall be punished by hanging; the defendant, however false, shall not be guilty of a crime. In a certain period of time, such crimes were severely punished, and the maximum penalty was immediate justice and forfeiture of property. Jiaqing period new regulations, all the contents of the "important state affairs", can be heard, waiting for secret. According to the law of "the Crime of casting Anonymous instrument against a person", the crime can be divided into basic offence, extended crime and extended crime. The analysis of the crime and its internal logic is the basis of deeply understanding the application of the law and the comprehensive understanding of the problem of "the crime of electing anonymous document against the person", and is also the expression of the legislative level at that time. Although the law of "casting anonymous documents against people" in Qing Dynasty was systematic, there were some contradictions, especially after the emergence of "important state affairs", anonymous disclosure was prevalent and became one of the chronic diseases of the society at that time. This is because of the shortcomings of the law itself; second, the law made by the ruler is often first destroyed by the ruler; third, the malpractice of bureaucrat politics is difficult to overcome; fourth, there is a lack of protection mechanism for reporting under the real name; Fifth, democratization, the lack of a legal decision-making mechanism. In addition, there are many problems to be explored. Legislation against anonymous disclosure, which can exist in China for more than 2,000 years, has its own reasonableness. The ancients were able to recognize that anonymous prosecution did more harm than good, and prohibited it by law, indicating that it was in line with social needs. To this day, anonymous correspondence whistleblower still does not withdraw from the stage of history. On the basis of summarizing the historical experience, the author thinks that the method of anonymous letter should not be advocated, and there should be corresponding punishment to restrict it. At the same time, on the basis of strictly restricting anonymous disclosure, perfecting the protection mechanism of real name reporting, giving people the social environment of freedom of speech and making anonymous disclosure of the market without survival is the fundamental method to solve the problem.
【学位授予单位】：南开大学
【学位级别】：博士
【学位授予年份】：2012
【分类号】：D929;D924.3

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