清代“发冢”罪研究
发布时间：2019-03-06 19:48
【摘要】：“发冢”行为,是由来已久的社会现象。“发冢”的出发点,有的出自财产追求,有的出自复仇心理,还有其他复杂的因素。“发冢”是一组罪名,它有许多形式,包括与盗墓相关的活动,其中以盗墓最为代表性。在中国古代社会,人们有“灵魂不灭”的生死观及对祖先的孝道观,他们都希望自己的祖先能够入土为安,对待死者像对待生者一样。对死者的尊重,是对生者莫大的安慰,也能保佑后代生活繁荣兴旺。“发冢”行为严重破坏了古人的传统观念,因此历代统治者都制定严酷的法律以打击这种行为。本文结合清代“发冢”罪的律文,对清代“发冢”罪的典型案例进行归纳,分析其反映出的中国古代礼法观念。本文除了绪论和结语之外,共分为三章展开论述,其具体的内容要点如下:文章的绪论部分主要介绍了选题的背景与意义、文献综述、研究的思路与方法及论文选题的研究特色与创新之处。第一章概述了清代以前的“发冢”罪,先叙述了古代社会重视坟墓保护的社会背景,主要表现在古人的生死观、孝道观及统治者的提倡等方面,接着以朝代为顺序,纵向叙述了清代以前的“发冢”现象及“发冢”律文;第二章叙述了清代的“发冢”律文,依据“发冢”犯罪类型的不同,将清代的“发冢”律文,归纳为四类,继而叙述清末“发冢”律的改革与变化,其改革与变化的过程,反映了中国古代的“礼法之争”;第三章是本文的重中之重,该章结合《大清律例》关于“发冢”的法条,将“发冢”罪的典型案例,归类整理为五种不同的类型,进而分析清律对这些“发冢”罪的司法处置。清代“发冢”罪的犯罪情节不同,清律对其相应的司法处置也就有所不同,这充分地体现了罪刑相当的原则。清律对亲属之间“发冢”行为的司法处置要重于常人,这体现了清律对亲情的维护。在亲属之间“发冢”罪中,清律对卑幼的司法处置要重于尊长,这体现了古代尊卑之间不平等的关系。随着清代社会生活的“发冢”案件不断地增多,清律变得越来越严密,其对“发冢”罪的司法处置也越来越严酷,古代礼法观念对清律的影响也越来越深。文章的结语部分结合当代依法治国的社会背景,倡导人们应当通过法律途径维护死者最后的尊严。
[Abstract]:"Tomb" behavior, is a long-standing social phenomenon. The starting point of Maotsuka, some from the pursuit of property, some from revenge, and other complex factors. Mausoleum is a group of charges that take many forms, including activities related to grave theft, of which grave theft is the most representative. In ancient Chinese society, people had a view of life and death and filial piety to their ancestors. They all hoped that their ancestors would be able to live in peace and treat the dead as if they were living. Respect for the dead is a great comfort to the living and a blessing for future generations. The act of "mound" seriously undermined the traditional ideas of the ancients, so the rulers of all dynasties enacted harsh laws to crack down on this kind of behavior. In this paper, the author sums up the typical cases of the crime of "Maitsuka" in Qing Dynasty, and analyzes the concept of etiquette and law in ancient China, which is reflected in the typical cases of the crime of "Maitsuka" in Qing Dynasty. In addition to the introduction and conclusion, this paper is divided into three chapters, the main points of its content are as follows: the introduction of the article mainly introduces the background and significance of the topic, literature review, The ideas and methods of the research and the research features and innovations of the thesis. The first chapter summarizes the crime of "tombs" before Qing Dynasty, first describes the social background of ancient society attaching importance to the protection of graves, mainly in the aspects of ancient people's view of life and death, filial piety and the advocate of rulers, and then takes the dynasties as the sequence. It describes the phenomenon of "mound" before Qing Dynasty and the law of "Maitsuka". In the second chapter, according to the different types of crimes in the Qing Dynasty, the author classifies the law in the Qing Dynasty into four categories, and then narrates the reform and change of the law in the late Qing Dynasty, and the process of the reform and change of the law, and the process of the reform and change in the law of the Maitsuka in the end of the Qing Dynasty, according to the different types of crimes. Reflects the ancient Chinese "ceremony and law dispute"; The third chapter is the most important part of this paper. Combined with the law of the Qing Dynasty, this chapter classifies the typical cases of the crime of Maotsuka into five different types, and then analyzes the judicial disposition of these crimes by Qing Dynasty. In Qing Dynasty, the circumstances of the crime are different, and the corresponding judicial disposition is different in Qing Dynasty, which fully reflects the principle of the equivalent of crime and punishment. The judicial disposition of the law of Qing Dynasty to the behavior of "mound" between relatives should be more important than that of ordinary people, which reflects the maintenance of the kindred feelings of the law of Qing Dynasty. In the crime of "mound" between relatives, the judicial disposition of the Qing Dynasty to the humble children should be more important than that of the superior, which reflects the unequal relationship between the superior and inferior in ancient times. With the incessant increase of the cases of "mound" in the social life of Qing Dynasty, the Qing law has become more and more strict, and its judicial disposition to the crime of "mausoleum" has become more and more severe, and the ancient concept of etiquette and law has influenced the Qing law more and more deeply. Combined with the social background of ruling the country according to law, the conclusion of the article advocates that people should protect the final dignity of the dead through legal means.
【学位授予单位】：青海师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：K249
本文编号：2435839
[Abstract]:"Tomb" behavior, is a long-standing social phenomenon. The starting point of Maotsuka, some from the pursuit of property, some from revenge, and other complex factors. Mausoleum is a group of charges that take many forms, including activities related to grave theft, of which grave theft is the most representative. In ancient Chinese society, people had a view of life and death and filial piety to their ancestors. They all hoped that their ancestors would be able to live in peace and treat the dead as if they were living. Respect for the dead is a great comfort to the living and a blessing for future generations. The act of "mound" seriously undermined the traditional ideas of the ancients, so the rulers of all dynasties enacted harsh laws to crack down on this kind of behavior. In this paper, the author sums up the typical cases of the crime of "Maitsuka" in Qing Dynasty, and analyzes the concept of etiquette and law in ancient China, which is reflected in the typical cases of the crime of "Maitsuka" in Qing Dynasty. In addition to the introduction and conclusion, this paper is divided into three chapters, the main points of its content are as follows: the introduction of the article mainly introduces the background and significance of the topic, literature review, The ideas and methods of the research and the research features and innovations of the thesis. The first chapter summarizes the crime of "tombs" before Qing Dynasty, first describes the social background of ancient society attaching importance to the protection of graves, mainly in the aspects of ancient people's view of life and death, filial piety and the advocate of rulers, and then takes the dynasties as the sequence. It describes the phenomenon of "mound" before Qing Dynasty and the law of "Maitsuka". In the second chapter, according to the different types of crimes in the Qing Dynasty, the author classifies the law in the Qing Dynasty into four categories, and then narrates the reform and change of the law in the late Qing Dynasty, and the process of the reform and change of the law, and the process of the reform and change in the law of the Maitsuka in the end of the Qing Dynasty, according to the different types of crimes. Reflects the ancient Chinese "ceremony and law dispute"; The third chapter is the most important part of this paper. Combined with the law of the Qing Dynasty, this chapter classifies the typical cases of the crime of Maotsuka into five different types, and then analyzes the judicial disposition of these crimes by Qing Dynasty. In Qing Dynasty, the circumstances of the crime are different, and the corresponding judicial disposition is different in Qing Dynasty, which fully reflects the principle of the equivalent of crime and punishment. The judicial disposition of the law of Qing Dynasty to the behavior of "mound" between relatives should be more important than that of ordinary people, which reflects the maintenance of the kindred feelings of the law of Qing Dynasty. In the crime of "mound" between relatives, the judicial disposition of the Qing Dynasty to the humble children should be more important than that of the superior, which reflects the unequal relationship between the superior and inferior in ancient times. With the incessant increase of the cases of "mound" in the social life of Qing Dynasty, the Qing law has become more and more strict, and its judicial disposition to the crime of "mausoleum" has become more and more severe, and the ancient concept of etiquette and law has influenced the Qing law more and more deeply. Combined with the social background of ruling the country according to law, the conclusion of the article advocates that people should protect the final dignity of the dead through legal means.
【学位授予单位】：青海师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：K249
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