“矜弱”的逻辑:清代儿童致毙人命案的法律谱系
发布时间：2019-05-18 20:55
【摘要】：清代对于儿童致毙人命案的处理,是将"请""减""赎"等特权与传统刑律的"六杀"体系及死刑复核制度融合在一起而形成的法律运作系统,其原理是"恤幼矜弱"的道德理念。随着法律实践的发展,乾隆年间形成定例,从加害人的客观年龄、加害人与被害人的年龄差距以及具体案件中的理曲欺凌情由等三个方面对"弱"进行界定,确保通过上请减流收赎的儿童确实是值得矜悯的弱者,从而实现了道德化的律文与实用性的条例之间的结合,平衡了加害人与被害人之间的权益。这种"实质理性"的法律思维及对实质正义的追求,在秋审规则和虚岁计龄法中同样有所体现。对比而言,西方的少年法律体系是基于"儿童是非理性人"的假设而展开的形式逻辑演绎。随着社会的发展和不同文化观念的冲击,这种假设也面临着挑战,不得不以"保护未成年人"的实质性理念来补强,却又因忽视被害人的利益而陷入争议。
[Abstract]:The handling of the murder of children in Qing Dynasty was a legal operation system formed by combining the privileges such as "asking", "reducing" and "redeeming" with the "six killings" system of the traditional criminal law and the review system of the death penalty. Its principle is the moral idea of "compassionate the young and proud of the weak". With the development of legal practice, legislation was formed during the Qianlong period, which defined "weakness" from three aspects: the objective age of the perpetrator, the age gap between the perpetrator and the victim, and the cause of bullying in specific cases. Ensure that the children who are redeemed are indeed merciful and weak, thus achieving a combination of moral laws and practical regulations, and balancing the rights and interests of the perpetrator and the victim. This kind of legal thinking of "substantive rationality" and the pursuit of substantive justice are also reflected in the rules of autumn trial and the law of virtual age planning. In contrast, the juvenile legal system in the West is a formal logical deduction based on the assumption that children are irrational people. With the development of society and the impact of different cultural concepts, this hypothesis is also facing challenges. It has to be strengthened by the substantive concept of "protecting minors", but it is in dispute because of neglecting the interests of victims.
【作者单位】： 四川大学法学院;
【分类号】：D929
本文编号：2480330
[Abstract]:The handling of the murder of children in Qing Dynasty was a legal operation system formed by combining the privileges such as "asking", "reducing" and "redeeming" with the "six killings" system of the traditional criminal law and the review system of the death penalty. Its principle is the moral idea of "compassionate the young and proud of the weak". With the development of legal practice, legislation was formed during the Qianlong period, which defined "weakness" from three aspects: the objective age of the perpetrator, the age gap between the perpetrator and the victim, and the cause of bullying in specific cases. Ensure that the children who are redeemed are indeed merciful and weak, thus achieving a combination of moral laws and practical regulations, and balancing the rights and interests of the perpetrator and the victim. This kind of legal thinking of "substantive rationality" and the pursuit of substantive justice are also reflected in the rules of autumn trial and the law of virtual age planning. In contrast, the juvenile legal system in the West is a formal logical deduction based on the assumption that children are irrational people. With the development of society and the impact of different cultural concepts, this hypothesis is also facing challenges. It has to be strengthened by the substantive concept of "protecting minors", but it is in dispute because of neglecting the interests of victims.
【作者单位】： 四川大学法学院;
【分类号】：D929
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