清代“立嫡子违法”律例研究

发布时间：2018-11-22 06:18

【摘要】： “立嫡子违法”律例为《大清律例·户律》专条,主要用来规制在宗祧继承人的选立过程之中,不遵循法律规定的顺序和条件选立宗祧继承人,或者是违背了相关选立程序,从而破坏了家庭乃至家族内部伦理秩序的行为。本条立法的重点在于维护基层社会宗祧继承的稳定,体现出专制国家寄希望于对宗祧继承人的选立范围以及选立程序的法定化,以达到“民安而国固”的目的。宗祧继承历来为统治者所重视,同时宗祧继承也直接关系到被继承人遗产的分配。由于涉及到了财产的继承和分配的问题,因此,宗祧继承行为直接关系到家庭乃至家族内部关系的和谐与稳定,这对于整个基层社会的稳定是可以起到决定性作用的。基层社会的稳定关系到专制国家社会统治基础,因此统治者相当重视,在规范民间继承行为,制裁由此引发的相关违法犯罪行为方面有明确规定。 “立嫡子违法”律例规范体系及事例、成案、则例等相关法律渊源,彼此间相互联系,相互补充,以教化与惩罚相结合的方式,对维护清朝统治秩序起到过积极的作用。但是由于立法与社会现实之间存在一定程度的脱节,因而导致法律在具体的适用过程中,产生了与社会现实的种种不适应,并且伴随着商品经济的发展,以及社会生活中经济因素的作用日益凸显,法律在司法的过程之中孕育着变革的必然性。本文以“立嫡子违法”律例为研究对象,对其律的发展沿革以及例条的增删修订进行梳理,在整理有关“立嫡子违法”律例及相关的法规体系的同时,解读其规制对象。通过具体事例分析,了解该法律在社会生活中的适用问题,以及专制国家所采取的种种措施。在试图揭示该法律所蕴含立法理念的同时,分析其最深层次的立法目的所在。在对该条法律在司法过程之中的具体使用情况予以分析和反思之后,寻找法律发展和演变的规律性所在。在尽可能的对法律本身以及其适用效果作出客观评价的同时,总结其成功的经验和失败的教训,为当代社会的立法和司法提供一定的启示。
[Abstract]:The law of "illegality of lien Zi" is a special article of the Law of the Qing Dynasty. It is mainly used to regulate the selection of heirs of the patriarchal system in the process of selecting the heirs of the patriarchal system, not in accordance with the order and conditions prescribed by the law, or in violation of the relevant procedures for the election of heirs. Thus destroying the family and even the family's internal ethical order behavior. The emphasis of this article is to maintain the stability of the patriarchal system succession in the grassroots society, which reflects the autarchy country's hope that the scope of the selection of the heir to the patriarchal system and the legalization of the selection procedure are the hope of the autocratic state, in order to achieve the goal of "the people are safe and the country is strong". The clan system inheritance has always been attached importance to by the rulers, and it is also directly related to the distribution of the heirs. Because of the problem of inheritance and distribution of property, the inheritance of patriarchal system directly relates to the harmony and stability of the family and even the relationship within the family, which can play a decisive role in the stability of the whole grass-roots society. The stability of the grass-roots society is related to the ruling foundation of the autocratic state society, so the rulers attach great importance to it, and have a clear stipulation in standardizing the folk inheritance behavior and sanctioning the related illegal and criminal acts caused by it. The rules and regulations system and examples, the case, the rules of law and other related legal sources, which are related to each other and complement each other, played a positive role in maintaining the ruling order of the Qing Dynasty in the way of the combination of enlightenment and punishment. However, there is a certain degree of disconnection between legislation and social reality, which leads to the law in the specific application process, resulting in a variety of social reality, and accompanied by the development of the commodity economy. And the role of economic factors in social life is increasingly prominent, the law in the judicial process pregnant with the inevitability of change. In this paper, the author takes the laws and regulations as the research object, combs the development of the laws and the addition and deletion of the rules, and interprets the regulation objects while sorting out the laws and regulations about the illegal laws and regulations of the laws and regulations on the basis of the laws and regulations. Through the analysis of concrete examples, we can understand the application of this law in social life and the measures taken by autocratic countries. While trying to reveal the legislative idea contained in the law, it analyzes its deepest legislative purpose. After analyzing and reflecting on the specific use of the law in the judicial process, the author finds out the regularity of the development and evolution of the law. While making an objective evaluation of the law itself and its application effect as far as possible, the author summarizes its successful experience and the lessons of its failure, and provides some enlightenment for the legislation and judicature of the contemporary society.
【学位授予单位】：南开大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D929

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