清末民初杀害尊亲属之罪刑变迁

发布时间：2018-06-01 15:56

本文选题：杀害尊亲属 + 清末民初　；参考：《中国政法大学》2010年硕士论文

【摘要】： 杀尊亲属之罪,发端于“尊尊亲亲”,历代刑法均将之入诸重罪,即迭经清末修律,迄至1935年刑法,仍得保留,其生命力之“顽强”,可见一斑。存在即具合理性。礼法结合是中华法系最主要的传统和特点,对杀害尊亲属加重处刑即是一大表征,为历代刑律传承,特别是晋律确立“准五服以制罪”原则以来,有关杀害尊亲属的规范渐趋完备细密。本文在对杀害尊亲属规范的历史沿革进行梳理的基础上,重点探讨该罪于变法频仍之清末民初在诸个法律文本中呈现的“变”与“不变”、朝野对相关问题的论争以及在司法实践中的种种衍生,以此管窥在近代社会急剧转型过程中法律对传统与民情的调适与回归。本文共有四个部分:第一部分追溯清末以前杀害尊亲属罪刑之沿革,侧重于立法例的变迁;第二部分及第三部分考察清末至民初历次刑法修订中“杀尊亲属”条的表达与司法实践及相关争议问题。最后为结语。
[Abstract]:The crime of killing one's relatives originated in "respecting one's relatives", which was accepted as a felony by successive criminal laws, that is, repeated revision of laws in the late Qing Dynasty. Up to 1935, the criminal law still had to be retained, and its vitality was "tenacious", as can be seen. Being is reasonable. The combination of etiquette and law is the most important tradition and characteristic of the Chinese legal system. The aggravated punishment for the killing of the family members is a major symbol, which inherits the criminal laws for the past dynasties, especially since the Jin law established the principle of "the right five servitude to regulate the crime". The rules governing the killing of respected relatives are becoming more and more sophisticated. On the basis of combing the historical evolution of the norm of killing respected relatives, this paper focuses on the "change" and "invariance" of this crime in the various legal texts of the late Qing and early Republic of China, where the crime is frequently reformed. The controversy of the government and the opposition on the related issues and various derivation in the judicial practice, so as to peep at the adjustment and return of the law to the tradition and the people in the process of the rapid transformation of the modern society. There are four parts in this paper: the first part traces back to the history of the crime and punishment of killing relatives before the end of Qing Dynasty, focusing on the changes of legislative cases; The second part and the third part investigate the expression, judicial practice and related disputes of the article of "killing relatives" in the revision of criminal law from the end of Qing Dynasty to the beginning of the Republic of China. The last is the conclusion.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D929

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