略谈民主改革前的西藏刑事立法
发布时间：2018-07-20 19:22
【摘要】：民主改革前的西藏刑事立法是从各个时期的法律规定、部落习惯法的基础上承继与沿袭下来的。虽然现在西藏实行的是中华人民共和国法律,但民主改革前的西藏法律也可以说是我国古代法律体系中的一朵奇葩,现行刑法在西藏的执行过程中会因当地的各种文化传统、风土人情和生活习俗的不同或多或少的受到一些来自不同方面的冲击和影响,有的是世代相袭的习俗,有的是历史遗留问题或者是旧社会的产物。了解西藏的法律文化对于指导当前的刑事司法、刑事立法实践具有积极的意义。 本文收集了很多文献材料对民主改革前的西藏刑事立法进行了浅析介绍,希望能对现行刑法在西藏的适用提供一个参考,本文分四部分来论述自己的观点。 第一部分:主要介绍了西藏的地理概貌及与藏区法律的的关系。早期的西藏并无法律现象,原始宗教的一些教义和长期生活所形成习惯成为人们普遍遵守的行为准则,其从某个方面来讲类似于习惯法。 第二部分:介绍了民主改革前藏区部落的刑事立法思想基础及相关刑罚适用。藏区在民主改革前由于一直处于带有农奴残余的封建部落制的社会中,因此其刑事立法的指导思想基础具有血亲复仇主义、神权主义、专制主义的特点,而藏区刑法的规范有着其简约性、任意性和区域性的特点。 第三部分:分析了民主改革前西藏刑罚制度上的几个问题,主要包括刑事责任年龄问题、故意与过失的区分问题、同罪不同罚原则的适用问题、刑罚男女有别原则的适用问题、株连原则的适用问题。通过对生命刑(死刑)、身体刑(肉刑)、财产刑、身份刑、人身羞辱刑、劳役刑等几种刑罚的介绍和分析,可以看出民主改革前的旧西藏刑罚是极其残酷、黑暗,有的甚至残忍的让人难以想象,这是当时社会生活长期落后和生产力极端低下的另一种表现。 第四部分:是对前三部分的归纳,主要对民主改革前西藏刑罚中的一些合理、积极的方面作了提炼,以对我国刑法制度改革有所助益。在死刑方面,民主改革前旧西藏刑法对杀人罪有死刑规定,但依据习惯法,则主要是以“赔命价”形式来解决刑罚问题。这种立而不用的立法模式在我们当前讨论死刑存废问题上很值得借鉴。对于死刑的适用,在技术层面上彰显死刑的威慑性,在人类自然理性层面上,凸现人性的宽容性。在财产刑方面,民主改革前的旧西藏主要适用的是赔偿制度,在赔偿方式与额度中带有明显的等级性。
[Abstract]:The criminal legislation of Tibet before the democratic reform was inherited and inherited from the laws of various periods and tribal customary laws. Although the laws of the people's Republic of China are now in force in Tibet, the laws of Tibet before the democratic reform can also be said to be a rare flower in the ancient legal system of China. The current criminal law will be implemented in Tibet because of various local cultural traditions. Different customs and customs of life are more or less affected by some different aspects of the impact and influence, some of the customs inherited from generation to generation, some are historical problems or the product of the old society. Understanding Tibet's legal culture is of positive significance in guiding current criminal justice and criminal legislation practice. This paper has collected a lot of documents to analyze and introduce the criminal legislation of Tibet before the democratic reform, hoping to provide a reference for the application of the current criminal law in Tibet. This article is divided into four parts to discuss the viewpoint of Tibet. The first part mainly introduces the geographical overview of Tibet and its relationship with the laws of Tibetan area. There was no legal phenomenon in early Tibet, and some of the teachings of primitive religions and habits formed by long life became universally observed codes of conduct, which were in some ways similar to customary law. The second part: introduced the criminal legislation thought foundation and the related penalty application of the Tibetan tribe before the democratic reform. Before the democratic reform, the Tibetan region was in a feudal tribal society with the vestiges of serfdom, so the guiding ideology of its criminal legislation was characterized by consanguineous revanchism, theocracy, and autocracy. The norms of Tibetan criminal law have its simplicity, arbitrariness and regional characteristics. The third part analyzes several problems in the penalty system of Tibet before the democratic reform, including the age of criminal responsibility, the distinction between intent and negligence, the application of the principle of different punishment for the same crime, and the application of the principle of the difference of punishment between men and women. The application of the principle of plant linkage. Through the introduction and analysis of life punishment (death penalty), body punishment (corporal punishment), property punishment, identity penalty, personal humiliation penalty, and servitude penalty, we can see that the old Tibetan punishment before the democratic reform was extremely cruel and dark. Some even cruel unimaginable, this is the social life long backward and extremely low productivity another manifestation. The fourth part is the induction of the first three parts, which mainly refines some reasonable and positive aspects of the penalty in Tibet before the democratic reform, in order to be helpful to the reform of the criminal law system of our country. With regard to the death penalty, the old Tibetan criminal law before the democratic reform provided for the death penalty for homicide, but according to the customary law, it was mainly in the form of "compensation for life" to solve the penalty problem. This legislative model is worth drawing lessons from in our current discussion on the issue of the death penalty. For the application of the death penalty, the deterrent nature of death penalty is demonstrated on the technical level, and the tolerance of human nature is highlighted in the aspect of human natural rationality. In terms of property penalty, the old Tibet before the democratic reform mainly applied the compensation system, with obvious hierarchy in the way and amount of compensation.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D924.1
本文编号：2134516
[Abstract]:The criminal legislation of Tibet before the democratic reform was inherited and inherited from the laws of various periods and tribal customary laws. Although the laws of the people's Republic of China are now in force in Tibet, the laws of Tibet before the democratic reform can also be said to be a rare flower in the ancient legal system of China. The current criminal law will be implemented in Tibet because of various local cultural traditions. Different customs and customs of life are more or less affected by some different aspects of the impact and influence, some of the customs inherited from generation to generation, some are historical problems or the product of the old society. Understanding Tibet's legal culture is of positive significance in guiding current criminal justice and criminal legislation practice. This paper has collected a lot of documents to analyze and introduce the criminal legislation of Tibet before the democratic reform, hoping to provide a reference for the application of the current criminal law in Tibet. This article is divided into four parts to discuss the viewpoint of Tibet. The first part mainly introduces the geographical overview of Tibet and its relationship with the laws of Tibetan area. There was no legal phenomenon in early Tibet, and some of the teachings of primitive religions and habits formed by long life became universally observed codes of conduct, which were in some ways similar to customary law. The second part: introduced the criminal legislation thought foundation and the related penalty application of the Tibetan tribe before the democratic reform. Before the democratic reform, the Tibetan region was in a feudal tribal society with the vestiges of serfdom, so the guiding ideology of its criminal legislation was characterized by consanguineous revanchism, theocracy, and autocracy. The norms of Tibetan criminal law have its simplicity, arbitrariness and regional characteristics. The third part analyzes several problems in the penalty system of Tibet before the democratic reform, including the age of criminal responsibility, the distinction between intent and negligence, the application of the principle of different punishment for the same crime, and the application of the principle of the difference of punishment between men and women. The application of the principle of plant linkage. Through the introduction and analysis of life punishment (death penalty), body punishment (corporal punishment), property punishment, identity penalty, personal humiliation penalty, and servitude penalty, we can see that the old Tibetan punishment before the democratic reform was extremely cruel and dark. Some even cruel unimaginable, this is the social life long backward and extremely low productivity another manifestation. The fourth part is the induction of the first three parts, which mainly refines some reasonable and positive aspects of the penalty in Tibet before the democratic reform, in order to be helpful to the reform of the criminal law system of our country. With regard to the death penalty, the old Tibetan criminal law before the democratic reform provided for the death penalty for homicide, but according to the customary law, it was mainly in the form of "compensation for life" to solve the penalty problem. This legislative model is worth drawing lessons from in our current discussion on the issue of the death penalty. For the application of the death penalty, the deterrent nature of death penalty is demonstrated on the technical level, and the tolerance of human nature is highlighted in the aspect of human natural rationality. In terms of property penalty, the old Tibet before the democratic reform mainly applied the compensation system, with obvious hierarchy in the way and amount of compensation.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D924.1
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