浅析中国古代容隐制度及其现代价值
发布时间：2018-07-26 11:24
【摘要】： 容隐制度是我国古代社会存在的一项重要的法律制度,是礼法结合的典型代表之一,在构建具有中国特色的社会主义和谐社会的今天,重新审视这一古代法律制度的奇葩,更具有可贵的现实价值。容隐制度在中国的产生与发展经历了漫长的过程,从先秦至民国一脉相承,它以浓郁的伦理法特征调整亲属之间隐匿犯罪、作证豁免等问题,努力去追求个人与家族、个人与社会的和谐。古代容隐制度经历了从道德准则到法律制度、从相隐义务到相隐权利、从单向容隐到双向容隐的转变,很好的实现了引礼入法、礼法结合的特点。容隐制度体现了对人性的尊重和关爱,体现了法律不强人所难的理念,不但符合法治精神,更有利于实现法的社会效益,建立一种个人利益、家庭利益和社会利益平衡并重的模式。我们应当继续发挥容隐制度在现代法治社会的价值,赋予亲属拒绝作证权和亲属隐匿权,合理界定容隐的范围,对于侮辱、诽谤等自诉案件,继续奉行“不告不理”的原则。 本论文共分五个部分,第一部分简单介绍了中国古代容隐制度的产生与发展,从先秦至民国,再到今天的台湾,追本溯源,让我们更好的掌握容隐制度的发展脉络；第二部主要是探究古代容隐制度的演变特点,总结出其中的一些规律,比如容隐义务到容隐权利的变迁、单向容隐向双向容隐的转变、容隐范围的变化规律等；第三部分是中国容隐制度的现实价值分析,包括容隐制度的合理性分析和容隐制度在我国的现状分析,既从正面分析容隐制度的正当性,又从反面剖析我国目前没有容隐制度带来的负面效应；第四部分是关于我国现代容隐制度的构建的设想,以国外的容隐制度立法为参考,包括英美法系和大陆法系,构建符合我国历史传承和现实需要的容隐制度；第五部分是结论部分,对建立我国特色的容隐制度提出了殷切的期盼。
[Abstract]:Tolerance and concealment system is an important legal system in ancient society of our country. It is one of the typical representatives of the combination of etiquette and law. In today's construction of a harmonious socialist society with Chinese characteristics, we should re-examine the rare work of this ancient legal system. More valuable practical value. The emergence and development of the concealment system in China has gone through a long process, from the pre-Qin Dynasty to the Republic of China. It adjusts the problems of concealment among relatives, testifying immunity and so on with strong ethical characteristics, and tries its best to pursue individuals and families. Personal and social harmony. The ancient concealment system experienced the transformation from the moral standard to the legal system, from the implicit obligation to the implicit right, from the one-way to the bi-directional implicit, which well realized the characteristics of the law of inducement into the law and the combination of etiquette and law. The system of tolerance and concealment embodies the respect and care for human nature and the idea that the law is not only in accordance with the spirit of the rule of law, but also conducive to the realization of the social benefits of the law and the establishment of a personal interest. The model of balancing family interests with social interests. We should continue to give full play to the value of the tolerance system in the modern society ruled by law, endow the relatives with the right to refuse to testify and the right of relatives to conceal, reasonably define the scope of concealment, and continue to adhere to the principle of "not complaining" to private prosecution cases such as insults and libel. This thesis is divided into five parts. The first part briefly introduces the emergence and development of the ancient Chinese concealment system, from the pre-Qin Dynasty to the Republic of China, and then to Taiwan today, tracing back to the source, let us better grasp the development of the concealment system; The second part mainly explores the evolution characteristics of the ancient concealment system, summarizes some of the laws, such as the transition from the concealment obligation to the concealment right, the change from one-way to two-way concealment, the change of the range of concealment, and so on. The third part is the realistic value analysis of China's concealment system, including the rationality analysis of the concealment system and the analysis of the present situation of the concealment system in our country, that is, the positive analysis of the legitimacy of the concealment system. The fourth part is about the construction of the modern concealment system in China, which is based on the foreign legislation, including the Anglo-American law system and the continental law system. The fifth part is the conclusion part, which puts forward the ardent expectation to the establishment of the concealment system with Chinese characteristics.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D925.2;D929
本文编号：2145855
[Abstract]:Tolerance and concealment system is an important legal system in ancient society of our country. It is one of the typical representatives of the combination of etiquette and law. In today's construction of a harmonious socialist society with Chinese characteristics, we should re-examine the rare work of this ancient legal system. More valuable practical value. The emergence and development of the concealment system in China has gone through a long process, from the pre-Qin Dynasty to the Republic of China. It adjusts the problems of concealment among relatives, testifying immunity and so on with strong ethical characteristics, and tries its best to pursue individuals and families. Personal and social harmony. The ancient concealment system experienced the transformation from the moral standard to the legal system, from the implicit obligation to the implicit right, from the one-way to the bi-directional implicit, which well realized the characteristics of the law of inducement into the law and the combination of etiquette and law. The system of tolerance and concealment embodies the respect and care for human nature and the idea that the law is not only in accordance with the spirit of the rule of law, but also conducive to the realization of the social benefits of the law and the establishment of a personal interest. The model of balancing family interests with social interests. We should continue to give full play to the value of the tolerance system in the modern society ruled by law, endow the relatives with the right to refuse to testify and the right of relatives to conceal, reasonably define the scope of concealment, and continue to adhere to the principle of "not complaining" to private prosecution cases such as insults and libel. This thesis is divided into five parts. The first part briefly introduces the emergence and development of the ancient Chinese concealment system, from the pre-Qin Dynasty to the Republic of China, and then to Taiwan today, tracing back to the source, let us better grasp the development of the concealment system; The second part mainly explores the evolution characteristics of the ancient concealment system, summarizes some of the laws, such as the transition from the concealment obligation to the concealment right, the change from one-way to two-way concealment, the change of the range of concealment, and so on. The third part is the realistic value analysis of China's concealment system, including the rationality analysis of the concealment system and the analysis of the present situation of the concealment system in our country, that is, the positive analysis of the legitimacy of the concealment system. The fourth part is about the construction of the modern concealment system in China, which is based on the foreign legislation, including the Anglo-American law system and the continental law system. The fifth part is the conclusion part, which puts forward the ardent expectation to the establishment of the concealment system with Chinese characteristics.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D925.2;D929
【引证文献】
相关硕士学位论文 前1条
1 谢晓珍;论容隐制度的缺失与回归[D];华东政法大学;2012年
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