清代“家人求索”罪研究

发布时间：2019-01-16 01:16

【摘要】：古人云:"临大利而易其义,可谓廉矣"1。又云:"贪而弃义,必为祸阶"2。从官僚系统产生的时刻开始,贪污腐败的现象就没有消失过,无论是在封建专制时期还是在建设社会主义国家的新时期,这都是一个关乎国计民生的重要法律问题。吏治是中国历代王朝治理国家、管理社会的一项重要内容,吏治的好坏关乎国运,而吏治的重点在于防范和惩治官吏职务犯罪,由此中国古代制定出一套完整的关于职务犯罪的预防及法律规制,这些法律规制对当下的法律研究和制定具有重要理论价值与现实意义。本文以研究清朝"家人求索"律例为基点,通过考察它的历史渊源、内容范围,来揭示它的现实意义。"家人求索"律源于《唐律·职制》的"受所监临财物"、"贷所监临财物"、"役使所监临"等条,至明朝始合并为律,清朝因循并增加一些新例。该律例是限制官员家人利用官员影响力索取财物的一个法律法规,内容全面,范围较广,尤其在清朝愈加规范,影响愈深。通过研究可以清晰地看到,清朝统治者(尤其是前期帝王)为了巩固满清政权,加强它的统治地位,对直接管理社会的"监临官吏"是否廉政,尤为重视,并作为立法的重点之一,该法律涉及官吏家人借贷、索取、受收礼物、买卖及其相关人员勒索钱财等多个方面,对官吏家人在以上方面的行为予以限制,以维护官吏治理秩序。本文共分五大部分,第二章至第六章是研究重点,从追溯"家人求索"律例的历史渊源(包括内容及形式渊源)开始,对该律例有一个宏观的认识,再以现代犯罪理论为方法,研究该律例所涉及犯罪内容的形式、特征、处理,以便读者对该律例的具体内容加以深刻理解,通过纵向与横向交叉的研究以求揭示"家人求索"律例存在的原因及影响,从而以史为镜,为现代社会提供借鉴。当然,清朝作为封建王权统治的社会,无论其从立法、司法上如何完善,都不能避免它走向灭亡。但对"家人求索"的研究,可以使人们了解清朝立法(修律订例)的历史,认识当时的历史背景,了解清朝法律的特点和体例,了解当时的立法技术和方法,从这一点上说,研究"家人求索"律例是从一滴水来映照大海,使人们对中国历史上占据重要地位的清朝法律制度有更深的了解。
[Abstract]:As the ancients said, "when you come to a great profit, you can say it is cheap." And he said, "greed and abandonment of righteousness will be the order of woe" 2. Since the emergence of the bureaucracy, the phenomenon of corruption has not disappeared. Whether in the feudal autocratic period or in the new period of building a socialist country, it is an important legal issue concerning the national economy and the people's livelihood. The administration of officials is an important part of the administration of the state and society in the past dynasties of China. The good or bad of the administration of officials is related to the national luck, and the focus of the administration of officials is to prevent and punish official crimes committed by officials. Thus, in ancient China, a complete set of prevention and legal regulations on job-related crimes was formulated, which has important theoretical value and practical significance for the current legal research and formulation. Based on the study of the laws and regulations of the Qing Dynasty, this paper reveals its practical significance by examining its historical origin and scope of contents. " The law of "family seeking" originates from the articles of "supervised property", "loan of temporary property", "servitude", and so on, which were merged into the law until the Ming Dynasty, followed by the Qing Dynasty and added some new examples. This law is a law and regulation that restricts officials' families to use the influence of officials to obtain property. It is comprehensive in content and wide in scope, especially in the Qing Dynasty. Through the study, we can clearly see that the rulers of the Qing Dynasty (especially the early emperors), in order to consolidate the Manchu regime and strengthen its dominant position, attach particular importance to the "supervision and treatment of government officials", who directly manage the society, whether or not they are clean and clean. As one of the emphases of the legislation, this law involves many aspects, such as borrowing, asking for, receiving gifts, extorting money and other related personnel, and so on, to restrict the behavior of the family of officials in the above aspects in order to maintain the order of government officials' governance. This article is divided into five parts, the second to the sixth chapter is the focus of the research, from tracing back to the historical origin of the "family search" law (including the content and formal origin), there is a macro understanding of the law, and then the modern crime theory as a method. To study the form, characteristics and treatment of the criminal content involved in the law, so that the reader can understand the specific content of the law deeply, and through the longitudinal and horizontal research to reveal the reason and influence of the existence of the "family claim" law. In order to history as a mirror, for the modern society to provide reference. Of course, the Qing Dynasty, as a feudal society ruled by Wang Quan, no matter how perfect it was in legislation and judicature, it could not avoid its demise. However, the study of "family search" can enable people to understand the history of the Qing Dynasty legislation (amending laws and regulations), to understand the historical background of the Qing Dynasty, to understand the characteristics and methods of the Qing Dynasty laws, and to understand the legislative techniques and methods at that time. The study of the laws and regulations of "Family search" reflects the sea from a drop of water, which enables people to have a deeper understanding of the legal system of the Qing Dynasty, which occupies an important position in the history of China.
【学位授予单位】：武汉大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D929

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