《驳案汇编》之贼盗案量刑问题研究

发布时间：2018-02-09 16:38

本文关键词： 驳案汇编贼盗量刑实体公正　出处：《郑州大学》2017年硕士论文　论文类型：学位论文

【摘要】：量刑作为以法律为根据,对犯人裁量刑罚的审判活动,是将法律实行的过程,是对相对人实体权利产生影响的活动。司法者在量刑过程中所遵循的原则、依据等直接体现了当时的法律水平,量刑的结果公平与否不仅关乎案件当事人的合法权益是否得到维护,也关乎民众对于法律及其背后支撑的国家权力信奉与否,进而影响社会稳定及法治进程。我国几千年的法制进程中自有其独特的量刑方法和原则,体现着传统的价值选择和判断。在量刑问题依然制约法治进程和人民法律信仰程度的今天,或可通过借鉴古代量刑智慧来改进当前的量刑实践,使法治得以实现,使人民从每一个案件中感受到公平正义,通过一个个案件来认可法律的权威。清代作为封建社会的最后一个朝代,法制和司法模式已经成熟,有很强的借鉴意义。而要了解清代的量刑,《驳案汇编》是最具代表性的资料,《驳案汇编》作为清代乾嘉时期的成案编集,所收案例一般都是原档案和卷宗的复录,以其真实性、全面性、权威性的特点而具有很高的研究价值。通过对其中案例的分析,以清晰的得出当时的司法运作状况。贼盗案历来为统治者所严厉打击,贼盗律位于《大清律例·刑律》之首,对《驳案汇编》中的贼盗案进行详细的研究能概括出当时的量刑状况和有益经验。《驳案汇编》中的有关贼盗案例,体现了其刑罚适中、情罪相符、审慎量刑、合乎情理的量刑原则,在量刑的过程中,力求平允,犯罪者所受的刑罚与其所犯罪行和造成的危害相当。在驳回督抚呈递的案件中,刑部批驳理由大都是定罪不平,案件事实不情,罪名轻重攸分,事关生死,未便率覆,体现了其量刑审慎,力求公正的量刑原则。在具体案例中,以常人情理判断案中当事人的具体行为,从而对案件情节进行判断量刑,以真正做到惩恶蔽辜,达到实体公正,体现了其合乎情理,罚当其罪的量刑原则。各个量刑原则体现在一个个具体的案例中,揭示着当时的量刑者在量刑的过程中所一直坚持的准则。在具体的案例中,可以分析出当时的量刑者希望通过量刑达到“辟以止辟,刑期无刑”、靖风俗、稳定社会秩序、惩恶蔽辜的量刑目的。当时的量刑,追求的是实体的正义,让恶者得到惩罚,让无辜的人得到情理上的补偿。同时,通过量刑,达到预防犯罪,靖肃风俗,稳定社会秩序的目的。在案例中也体现出量刑者对于事实状况、情节认定、律文选择、罪名确定等方面的严谨,对刑法适用的慎重,这些对于当今时代的量刑也具有重要的借鉴意义。
[Abstract]:Sentencing, as a judicial activity based on the law and discretion of the criminal penalty, is the process of enforcing the law and has an impact on the substantive rights of the relative person. The basis and so on directly reflected the level of the law at that time. Whether the result of sentencing was fair or not was not only related to whether the legitimate rights and interests of the parties to the case were protected, but also whether the public believed in the law and the state power underpinned by it. Thus affecting the process of social stability and the rule of law. Our country has its own unique sentencing methods and principles in the legal process of thousands of years. It reflects the traditional value choice and judgment. Today, the sentencing problem still restricts the process of the rule of law and the people's legal belief, or we can improve the current sentencing practice by using ancient sentencing wisdom for reference, so that the rule of law can be realized. Let the people feel fair and just in every case, and recognize the authority of the law through one case after another. As the last dynasty of feudal society, the legal system and judicial model have matured. This is of great significance for reference. In order to understand the sentencing of the Qing Dynasty, the Collection of refuting cases is the most representative data. As a compilation of successful cases in the Qianjia period of the Qing Dynasty, the cases received are generally rerecorded from the original archives and files, with their authenticity. Comprehensive, authoritative characteristics and has a high research value. Through the analysis of the cases, in order to get a clear understanding of the judicial operation at that time. Theft cases have always been severely attacked by the rulers. The theft law is located at the head of the "Qing Law 路Criminal Law". A detailed study of the theft case in the Collection of rebuttal cases can generalize the situation of sentencing and beneficial experience at that time. The relevant cases of burglary and theft in the Collection of refuting cases reflect the appropriate penalty. The principle of appropriate, prudent and reasonable sentencing. In the course of sentencing, the offender is subject to a penalty comparable to the crime he has committed and the harm he has caused. In the case submitted by the governor, Most of the reasons approved by the Ministry of torture are unfair conviction, the fact of the case is not sentimental, the charges are serious and serious, the death or death is concerned, and the rate of failure is repeated. This reflects its discretion in sentencing and strives for a just sentencing principle. In specific cases, Judging the concrete behavior of the party in the case by ordinary people's reason, so that the circumstances of the case can be judged and sentenced, in order to truly punish the evil, to achieve substantive justice, which reflects its reasonable, Penalty is the sentencing principle of its crime. Each sentencing principle is embodied in a specific case, revealing the criteria that the sentencing person at that time insisted on in the course of sentencing. In the specific case, It can be analyzed that the sentencing people at that time hoped to achieve the sentencing purposes of "opening up a sentence without punishment," pacifying customs, stabilizing social order, and punishing evil people. At that time, sentencing was meant to pursue substantive justice, so that the villains could be punished. Let innocent people get reasonable compensation. At the same time, through sentencing, to achieve the purpose of crime prevention, Jing Su custom, and stabilize social order. In the case, it also reflects the sentencing person's choice of facts, circumstances, and laws. The rigorous determination of charges and discretion in the application of criminal law are also of great significance for sentencing in the present age.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.1

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