民国北京政府惩治盗匪法规及其实施

发布时间：2019-05-16 20:32

【摘要】：民国北京政府时期的中国是动荡不安的。政治上，各种势力在争夺中央政权，内战不断；经济上，受国际经济冲击，小农经济在破产边缘，再加上自然灾害频仍，大量民众流离失所，迁徙各地；种种原因造成地方秩序不稳，各地盗贼横行，土匪遍地。面对严峻匪情，北京政府除了使用军队剿匪外，还试图通过法治途径解决问题。除了援引晚清法律外，当局还遵循“刑乱世用重典”的传统制定了一些刑事特别法规，严厉处罚盗匪犯罪。本文通过对惩治盗匪法规内容的分析及其司法运作的实施过程的观察，从而加深对民国法律近代化进程的认识。本文结构由导言和正文四章组成。导言部分首先介绍了本文的选题缘由，并回顾了已有研究状况。其次界定了盗匪的概念，并对民初盗匪的概况及成因作了初步分析。接着列举了盗匪的分类。最后比较了盗匪与秘密社会、盗匪与士兵的联系和区别。正文第一章是关于惩治盗匪法规的主要内容。其重点是刑事特别法及附属施行办法，尤其是《惩治盗匪法》。《惩治盗匪法》的内容涵盖了实体法和程序法两方面，其特点在于规定了盗匪罪的法定刑为绝对死刑，简化了审判程序和死刑复核程序，并规定罪犯不得上诉，并且赋予军事长官合法审判权。其他相关法规主要是关于警察、保卫团、商团等有权抓捕盗匪之机构的组织法规。第二章从总体上分析了惩治盗匪法规的实施情况。首先从执行机构、司法机构入手，对地方机构和军事机构的惩治盗匪的职责和奖惩分别展开叙述。然后是明确了惩治盗匪法规本身的时间效力和对人效力。最后统计了历年盗匪案件的数量及执行死刑的人数，通过数据直观地反映出《惩治盗匪法》实施后带来的影响。第三章是以大理院有关盗匪案件的解释例、判例为中心研究惩治盗匪法规的司法实施情况。通过对收集的解释例、判例展开分析，总结出大理院在法律适用、司法官权限审判程序、定罪量刑等方面对盗匪案件审判工作的特别指导和解释。最后对《惩治盗匪法》施行前后的判例进行比较，从微观层面展示了《惩治盗匪法》对盗匪案件司法实践产生的影响。第四章是结语部分。《惩治盗匪法》的出台深受传统重刑思想的影响，有历史的合理性，，并且发挥了一定的积极作用。但是由于法规本身的缺陷以及军人、行政权的干预，更关键的是宪法的缺失，使得法律的实施偏离了法治的轨道，最终充当了有权者的杀人工具，沦为臭名昭著的恶法。
[Abstract]:China was volatile during the period of the Beijing government in the Republic of China. Politically, all kinds of forces are fighting for central power and civil war. Economically, under the impact of the international economy, the smallholder economy is on the brink of bankruptcy, coupled with the frequent natural disasters, a large number of people are displaced and migrated to various parts of the country. Various reasons cause local order instability, thieves everywhere, bandits everywhere. In the face of severe bandits, the Beijing government not only uses the army to suppress bandits, but also tries to solve the problem through the rule of law. In addition to invoking the laws of the late Qing Dynasty, the authorities also followed the tradition of "severe punishment" to formulate some special criminal regulations to severely punish bandits. Through the analysis of the contents of the laws and regulations on the punishment of bandits and the observation of the implementation process of judicial operation, this paper deepens the understanding of the process of modernization of the laws of the Republic of China. The structure of this paper consists of four chapters: introduction and main body. The introduction first introduces the reasons for this topic, and reviews the existing research status. Secondly, it defines the concept of bandits, and makes a preliminary analysis of the general situation and causes of bandits in the early Republic of China. Then it enumerates the classification of bandits. Finally, the relationship and difference between bandits and secret society, bandits and soldiers are compared. The first chapter of the text is about the main content of the regulations on the punishment of bandits. Its focus is on the special criminal law and its subsidiary implementation measures, in particular the punishment of bandits. The contents of the Law on the punishment of bandits cover both substantive law and procedural law, which is characterized by the absolute death penalty for the crime of bandits. It simplifies trial procedures and death penalty review procedures, provides that criminals are not subject to appeal, and gives military officers legal jurisdiction. Other relevant laws and regulations are mainly about the police, security groups, business groups and other organizations with the power to catch bandits. The second chapter analyzes the implementation of the regulations to punish bandits as a whole. First of all, starting from the executive agency and the judiciary, this paper describes the responsibilities, rewards and punishments of local and military institutions to punish bandits. Then it clarifies the time effect and human effect of the act of punishing bandits. Finally, the number of bandits and the number of people carrying out the death penalty are counted, and the influence of the punishment of bandits after the implementation of the Law is intuitively reflected through the data. The third chapter is based on the interpretation of bandit cases in Dali Yuan, the case law as the center to study the judicial implementation of regulations to punish bandits. Through the analysis of the collected interpretation examples and cases, this paper summarizes the special guidance and interpretation of Dali Yuan on the trial work of bandits in the aspects of law application, judicial procedure of judicial jurisdiction of judges, conviction and sentencing, etc. Finally, this paper compares the cases before and after the implementation of the Law on the punishment of bandits, and shows the influence of the Law on punishment of bandits on the judicial practice of bandits cases from the micro level. The fourth chapter is the conclusion. The introduction of the Law on punishment of bandits is deeply influenced by the traditional thought of severe punishment, has historical rationality, and has played a certain positive role. However, due to the defects of the laws and regulations and the intervention of military and administrative powers, the more critical thing is the lack of the constitution, which makes the implementation of the law deviate from the track of the rule of law, and finally acts as a killing tool for those in power and becomes a notorious draconian law.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D929

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