清末修订法律馆考论

发布时间：2018-08-19 19:58

【摘要】： 近些年来,在清末新政热和沈家本热的带动下,学术界也将视角延伸到了清末十年修律活动,并出现了一批有价值的学术成果。但是,对于主持修律的机构——修订法律馆却被有意或无意地忽视了。本文的目的即在于还原修订法律馆的历史面目和历史价值。既为“还原”,则本文自当以“考”为主,以“论”为辅,“论”因“考”生,“考”、“论”结合;“考”则不厌其详,“论”则点到即止。本文即循着“考”这一思路,以时间为线索,以修订法律馆为红线,将修订法律馆的来龙去脉、主要工作及成就、历史作用等交代清楚。修订法律馆诞生于清王朝的统治大厦摇摇欲坠之际,与清末新政相始终,是清末新政中为革新法律而新设立的机构之一,其所有的工作都服从并服务于清末新政这个大局。它由刑部下属的律例馆于1904年改设,最初亦附属于刑(法)部,1907年因部院之争而独立;但是,这种独立是有名无实的,笔者更愿意称之为“半独立”。原因有二:一、它虽名为立法机构,却只有法律的草创权,而无决议权,所有修订的法律均须呈交宪政编查馆核议;二、它名为脱离法部而独立,实际上没有一个专职的修律人员,所有的工作人员,从修订法律大臣到一般馆员,均是兼职。尽管是一个半独立的机构,修订法律馆在沈家本的领导下,汇集了一大批具有近代法政知识的新式知识分子,以“折冲樽俎,模范列强”为修律宗旨,构建了刑法、民法、商法、诉讼法等近代法律体系。这些经过修律实践锻炼的法政人大都成为民国时期法学界和政治界的风云人物;法律馆附设的法律学堂所培养的大批法政人成为清末民初各级新式审判厅的法官和检察厅的检察官重要来源。最后,本文以近代化为视角,考察了修订法律馆及其修律活动对中国法律近代化的历史贡献。
[Abstract]:In recent years, driven by the New deal craze and Shen Jiaben fever in the late Qing Dynasty, the academic circles also extended the perspective to the decade of law revision activities in the late Qing Dynasty, and a number of valuable academic achievements appeared. However, the institution that presides over the revision of the law is either intentionally or unintentionally ignored. The purpose of this paper is to restore the historical features and historical value of the revised Law Museum. Since it is "restore", this article should be based on "examination", supplemented by "theory", "theory" because of "examination" born, "examination", "theory" combination; "examination" is not tired of its details, "theory" point to stop. This article follows the thought of "examination", taking time as the clue and revising the law hall as the red line, explains clearly the background, main work and achievements, historical function of the revised law museum. The revised Law Museum was born when the ruling building of the Qing Dynasty was crumbling, and was always the new policy in the late Qing Dynasty. It was one of the newly established institutions in the New deal of the late Qing Dynasty to reform the law, and all its work was subject to and served the overall situation of the New deal in the late Qing Dynasty. It was set up by the law house of the Ministry of Criminal Affairs in 1904 and was initially attached to the Ministry of punishment (Law), which became independent in 1907 because of the controversy between the departments and courts; however, this independence was nominal and the author preferred to call it "semi-independence". There are two reasons: first, although it is called the legislature, it has the power to initiate but not to decide on the law. All amended laws have to be submitted to the Constitutional Office for approval. Second, it is called independence from the Ministry of Law. In fact, there is not a full-time lawman, all the staff, from the Minister of Law revision to the general librarian, are part-time. Although it is a semi-independent institution, under the leadership of Shen Jiaben, the revised Law Museum, under the leadership of Shen Jiaben, brought together a large number of modern intellectuals with knowledge of modern law and politics, and set up the criminal law and civil law with the aim of "breaking down compromises and exemplary powers" as the purpose of amending the law. Commercial law, procedural law and other modern legal systems. Most of these people who were trained by the practice of law practice became the figures in the legal and political circles in the period of the Republic of China. A large number of legalists trained in the law school attached to the Law Museum became important sources of judges and procurators in the new-style judicial offices at all levels in the late Qing Dynasty and the early Republic of China. Finally, from the perspective of modernization, this paper examines the historical contribution of the revised Law Museum and its revision activities to the modernization of Chinese law.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D929

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