大清律例與近代兩部刑法典在總則性定罪量刑規(guī)定上的比較
發(fā)布時間：2019-03-06 09:11
【摘要】： 《大清律例》與《大清新刑律》、1935年《中華民國刑法》在內(nèi)容上既有繼承,又有發(fā)展。三部法典時間跨度長,前后聯(lián)系緊密�！洞笄逍滦搪伞纷鳛樾谭ń姆ǖ溟_山之作,是對《大清律例》的揚棄。1935年《中華民國刑法》對《大清新刑律》的繼承則更為明顯。刑法典當中的定罪量刑情節(jié),是我國傳統(tǒng)刑法中特色非常明顯的一部分。選擇對對三者比較,有一定的理論和現(xiàn)實意義。既是對三部法典定罪量刑相關(guān)法條的梳理,也是對法條背后的法理的挖掘。 文章首先對定罪量刑的過程、定罪量刑情節(jié)的定義、分類予以討論,以對討論的話題有所限定。并對三部法典在定罪量刑的過程,予以比較。文章的主體部分,分門別類地對三部法典在定罪量刑情節(jié)的異同進行對比。其中對法條多有引用。文章仍采用犯罪構(gòu)成四要件的學說,即犯罪主體、犯罪主觀方面、犯罪客體、犯罪客觀方面四部分。第二章是關(guān)于犯罪主體與主觀方面部分。文章對犯罪主體之間的身份、狀態(tài)等相關(guān)情節(jié)進行比較�！洞笄迓衫贩浅Ｖ匾暦缸镎叩纳矸�,依據(jù)政治地位、民族身份、職業(yè)身份,給予不同的處罰。同時文章比較了三部法典中主觀惡性和對犯罪的認識因素、犯罪的品德因素對定罪量刑的影響。而對于年齡、健康因素的關(guān)注,則是三部法典繼承與發(fā)展的部分。第三章是關(guān)于犯罪客體與客觀方面。犯罪客體方面的比較主要是重罪不予減免、區(qū)分公罪、私罪、重視犯罪人之間的尊卑關(guān)系等。關(guān)于犯罪客觀方面的比較,主要是關(guān)于累犯、自首、逃脫及地域因素。第四章是關(guān)于犯罪形態(tài)和排除違法性的規(guī)定的比較。犯罪形態(tài)包括犯罪停止形態(tài)、組合形態(tài)、罪數(shù)形態(tài),。排除違法性的規(guī)定則包括正當防衛(wèi)和緊急避險、依法令行為與公序良俗,犯罪人已受外國處罰等。文章都一一進行了對比 通過對三部法典定罪量刑情節(jié)的比較及發(fā)掘,可以發(fā)現(xiàn),三部法典之間變化的趨勢有三個方面。首先是由嚴刑峻法向輕刑化轉(zhuǎn)變,再到注重預防。其次是從身份等級到人人平等。從出禮入刑、禮刑合一到法律與道德的分離。最后是修律過程從過分西化到有所糾偏。三部法典跨越100余年,其后均有所繼承和發(fā)展。
[Abstract]:In 1935, the Criminal Law of the Republic of China inherited and developed both in content and in the law of the Qing Dynasty and the Criminal Law of the Republic of China. The three codes have a long time span and are closely connected before and after. The Great fresh Criminal Law, as a work of the modernization of criminal law, has a long time span and is closely connected with each other before and after. The inheritance of the Criminal Law of the Republic of China in 1935 was more obvious than that of the Criminal Law of the Republic of China. The circumstance of conviction and sentencing in the criminal code is a very obvious part of the traditional criminal law in our country. The choice has certain theoretical and practical significance to the comparison of the three. It is not only the carding of the relevant articles of conviction and sentencing of the three codes, but also the excavation of the legal principle behind the articles. Firstly, this paper discusses the process of conviction and sentencing, the definition and classification of the circumstances of conviction and sentencing, in order to limit the topic discussed. And the three codes in the process of conviction and sentencing, to be compared. The main part of the article compares the similarities and differences between the three codes in the circumstances of conviction and sentencing. There are many references to the law. The article still adopts the theory that crime consists of four parts: the subject of crime, the subjective aspect of crime, the object of crime and the objective aspect of crime. The second chapter is about the subject and subjective aspects of the crime. In this paper, the author compares the identity, status and other relevant circumstances among the subjects of crime. The Qing Law attaches great importance to the identity of the offender and gives different punishments according to the political status, the national identity and the professional status. At the same time, the article compares the subjective malignancy and the cognitive factors of crime, and the influence of the moral factors of crime on conviction and sentencing in the three codes. The attention to age and health factors is part of the inheritance and development of the three codes. The third chapter is about the object and objective aspects of the crime. The comparison of the object of crime mainly includes no exemption of felony, distinction of public crime, private crime, emphasis on the relationship between the superior and inferior of the criminal and so on. On the objective aspects of crime comparison, mainly about recidivism, surrender, escape and regional factors. The fourth chapter is about the comparison of the criminal form and the rule of excluding illegality. The crime form includes the crime stop form, the combination form, the crime number form,. The provisions of excluding illegality include self-defense and emergency risk avoidance, lawful acts and public order and good customs, and criminals have been punished by foreign countries. Through comparing and excavating the circumstances of conviction and sentencing of the three codes, we can find that there are three aspects of the changing trend of the three codes. The first is the change from severe punishment to light punishment, and then to pay attention to prevention. The second is from the rank of status to equality for all. From offering ceremony into punishment, the combination of etiquette and punishment to the separation of law and morality. Finally, the process of revision of the law from excessive westernization to some correction. The three codes span more than 100 years, and have been inherited and developed since then.
【學位授予單位】：復旦大學
【學位級別】：碩士
【學位授予年份】：2010
【分類號】：D924;D929
本文編號：2435392
[Abstract]:In 1935, the Criminal Law of the Republic of China inherited and developed both in content and in the law of the Qing Dynasty and the Criminal Law of the Republic of China. The three codes have a long time span and are closely connected before and after. The Great fresh Criminal Law, as a work of the modernization of criminal law, has a long time span and is closely connected with each other before and after. The inheritance of the Criminal Law of the Republic of China in 1935 was more obvious than that of the Criminal Law of the Republic of China. The circumstance of conviction and sentencing in the criminal code is a very obvious part of the traditional criminal law in our country. The choice has certain theoretical and practical significance to the comparison of the three. It is not only the carding of the relevant articles of conviction and sentencing of the three codes, but also the excavation of the legal principle behind the articles. Firstly, this paper discusses the process of conviction and sentencing, the definition and classification of the circumstances of conviction and sentencing, in order to limit the topic discussed. And the three codes in the process of conviction and sentencing, to be compared. The main part of the article compares the similarities and differences between the three codes in the circumstances of conviction and sentencing. There are many references to the law. The article still adopts the theory that crime consists of four parts: the subject of crime, the subjective aspect of crime, the object of crime and the objective aspect of crime. The second chapter is about the subject and subjective aspects of the crime. In this paper, the author compares the identity, status and other relevant circumstances among the subjects of crime. The Qing Law attaches great importance to the identity of the offender and gives different punishments according to the political status, the national identity and the professional status. At the same time, the article compares the subjective malignancy and the cognitive factors of crime, and the influence of the moral factors of crime on conviction and sentencing in the three codes. The attention to age and health factors is part of the inheritance and development of the three codes. The third chapter is about the object and objective aspects of the crime. The comparison of the object of crime mainly includes no exemption of felony, distinction of public crime, private crime, emphasis on the relationship between the superior and inferior of the criminal and so on. On the objective aspects of crime comparison, mainly about recidivism, surrender, escape and regional factors. The fourth chapter is about the comparison of the criminal form and the rule of excluding illegality. The crime form includes the crime stop form, the combination form, the crime number form,. The provisions of excluding illegality include self-defense and emergency risk avoidance, lawful acts and public order and good customs, and criminals have been punished by foreign countries. Through comparing and excavating the circumstances of conviction and sentencing of the three codes, we can find that there are three aspects of the changing trend of the three codes. The first is the change from severe punishment to light punishment, and then to pay attention to prevention. The second is from the rank of status to equality for all. From offering ceremony into punishment, the combination of etiquette and punishment to the separation of law and morality. Finally, the process of revision of the law from excessive westernization to some correction. The three codes span more than 100 years, and have been inherited and developed since then.
【學位授予單位】：復旦大學
【學位級別】：碩士
【學位授予年份】：2010
【分類號】：D924;D929
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