“矜弱”的邏輯:清代兒童致斃人命案的法律譜系
發(fā)布時(shí)間：2019-05-18 20:55
【摘要】：清代對(duì)于兒童致斃人命案的處理,是將"請(qǐng)""減""贖"等特權(quán)與傳統(tǒng)刑律的"六殺"體系及死刑復(fù)核制度融合在一起而形成的法律運(yùn)作系統(tǒng),其原理是"恤幼矜弱"的道德理念。隨著法律實(shí)踐的發(fā)展,乾隆年間形成定例,從加害人的客觀年齡、加害人與被害人的年齡差距以及具體案件中的理曲欺凌情由等三個(gè)方面對(duì)"弱"進(jìn)行界定,確保通過上請(qǐng)減流收贖的兒童確實(shí)是值得矜憫的弱者,從而實(shí)現(xiàn)了道德化的律文與實(shí)用性的條例之間的結(jié)合,平衡了加害人與被害人之間的權(quán)益。這種"實(shí)質(zhì)理性"的法律思維及對(duì)實(shí)質(zhì)正義的追求,在秋審規(guī)則和虛歲計(jì)齡法中同樣有所體現(xiàn)。對(duì)比而言,西方的少年法律體系是基于"兒童是非理性人"的假設(shè)而展開的形式邏輯演繹。隨著社會(huì)的發(fā)展和不同文化觀念的沖擊,這種假設(shè)也面臨著挑戰(zhàn),不得不以"保護(hù)未成年人"的實(shí)質(zhì)性理念來補(bǔ)強(qiáng),卻又因忽視被害人的利益而陷入爭議。
[Abstract]:The handling of the murder of children in Qing Dynasty was a legal operation system formed by combining the privileges such as "asking", "reducing" and "redeeming" with the "six killings" system of the traditional criminal law and the review system of the death penalty. Its principle is the moral idea of "compassionate the young and proud of the weak". With the development of legal practice, legislation was formed during the Qianlong period, which defined "weakness" from three aspects: the objective age of the perpetrator, the age gap between the perpetrator and the victim, and the cause of bullying in specific cases. Ensure that the children who are redeemed are indeed merciful and weak, thus achieving a combination of moral laws and practical regulations, and balancing the rights and interests of the perpetrator and the victim. This kind of legal thinking of "substantive rationality" and the pursuit of substantive justice are also reflected in the rules of autumn trial and the law of virtual age planning. In contrast, the juvenile legal system in the West is a formal logical deduction based on the assumption that children are irrational people. With the development of society and the impact of different cultural concepts, this hypothesis is also facing challenges. It has to be strengthened by the substantive concept of "protecting minors", but it is in dispute because of neglecting the interests of victims.
【作者單位】： 四川大學(xué)法學(xué)院;
【分類號(hào)】：D929
本文編號(hào)：2480330
[Abstract]:The handling of the murder of children in Qing Dynasty was a legal operation system formed by combining the privileges such as "asking", "reducing" and "redeeming" with the "six killings" system of the traditional criminal law and the review system of the death penalty. Its principle is the moral idea of "compassionate the young and proud of the weak". With the development of legal practice, legislation was formed during the Qianlong period, which defined "weakness" from three aspects: the objective age of the perpetrator, the age gap between the perpetrator and the victim, and the cause of bullying in specific cases. Ensure that the children who are redeemed are indeed merciful and weak, thus achieving a combination of moral laws and practical regulations, and balancing the rights and interests of the perpetrator and the victim. This kind of legal thinking of "substantive rationality" and the pursuit of substantive justice are also reflected in the rules of autumn trial and the law of virtual age planning. In contrast, the juvenile legal system in the West is a formal logical deduction based on the assumption that children are irrational people. With the development of society and the impact of different cultural concepts, this hypothesis is also facing challenges. It has to be strengthened by the substantive concept of "protecting minors", but it is in dispute because of neglecting the interests of victims.
【作者單位】： 四川大學(xué)法學(xué)院;
【分類號(hào)】：D929
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