清末修訂法律館考論
發(fā)布時間：2018-08-19 19:58
【摘要】： 近些年來,在清末新政熱和沈家本熱的帶動下,學(xué)術(shù)界也將視角延伸到了清末十年修律活動,并出現(xiàn)了一批有價值的學(xué)術(shù)成果。但是,對于主持修律的機構(gòu)——修訂法律館卻被有意或無意地忽視了。本文的目的即在于還原修訂法律館的歷史面目和歷史價值。 既為“還原”,則本文自當(dāng)以“考”為主,以“論”為輔,“論”因“考”生,“考”、“論”結(jié)合;“考”則不厭其詳,“論”則點到即止。本文即循著“考”這一思路,以時間為線索,以修訂法律館為紅線,將修訂法律館的來龍去脈、主要工作及成就、歷史作用等交代清楚。 修訂法律館誕生于清王朝的統(tǒng)治大廈搖搖欲墜之際,與清末新政相始終,是清末新政中為革新法律而新設(shè)立的機構(gòu)之一,其所有的工作都服從并服務(wù)于清末新政這個大局。它由刑部下屬的律例館于1904年改設(shè),最初亦附屬于刑(法)部,1907年因部院之爭而獨立;但是,這種獨立是有名無實的,筆者更愿意稱之為“半獨立”。原因有二:一、它雖名為立法機構(gòu),卻只有法律的草創(chuàng)權(quán),而無決議權(quán),所有修訂的法律均須呈交憲政編查館核議;二、它名為脫離法部而獨立,實際上沒有一個專職的修律人員,所有的工作人員,從修訂法律大臣到一般館員,均是兼職。 盡管是一個半獨立的機構(gòu),修訂法律館在沈家本的領(lǐng)導(dǎo)下,匯集了一大批具有近代法政知識的新式知識分子,以“折沖樽俎,模范列強”為修律宗旨,構(gòu)建了刑法、民法、商法、訴訟法等近代法律體系。這些經(jīng)過修律實踐鍛煉的法政人大都成為民國時期法學(xué)界和政治界的風(fēng)云人物;法律館附設(shè)的法律學(xué)堂所培養(yǎng)的大批法政人成為清末民初各級新式審判廳的法官和檢察廳的檢察官重要來源。最后,本文以近代化為視角,考察了修訂法律館及其修律活動對中國法律近代化的歷史貢獻(xiàn)。
[Abstract]:In recent years, driven by the New deal craze and Shen Jiaben fever in the late Qing Dynasty, the academic circles also extended the perspective to the decade of law revision activities in the late Qing Dynasty, and a number of valuable academic achievements appeared. However, the institution that presides over the revision of the law is either intentionally or unintentionally ignored. The purpose of this paper is to restore the historical features and historical value of the revised Law Museum. Since it is "restore", this article should be based on "examination", supplemented by "theory", "theory" because of "examination" born, "examination", "theory" combination; "examination" is not tired of its details, "theory" point to stop. This article follows the thought of "examination", taking time as the clue and revising the law hall as the red line, explains clearly the background, main work and achievements, historical function of the revised law museum. The revised Law Museum was born when the ruling building of the Qing Dynasty was crumbling, and was always the new policy in the late Qing Dynasty. It was one of the newly established institutions in the New deal of the late Qing Dynasty to reform the law, and all its work was subject to and served the overall situation of the New deal in the late Qing Dynasty. It was set up by the law house of the Ministry of Criminal Affairs in 1904 and was initially attached to the Ministry of punishment (Law), which became independent in 1907 because of the controversy between the departments and courts; however, this independence was nominal and the author preferred to call it "semi-independence". There are two reasons: first, although it is called the legislature, it has the power to initiate but not to decide on the law. All amended laws have to be submitted to the Constitutional Office for approval. Second, it is called independence from the Ministry of Law. In fact, there is not a full-time lawman, all the staff, from the Minister of Law revision to the general librarian, are part-time. Although it is a semi-independent institution, under the leadership of Shen Jiaben, the revised Law Museum, under the leadership of Shen Jiaben, brought together a large number of modern intellectuals with knowledge of modern law and politics, and set up the criminal law and civil law with the aim of "breaking down compromises and exemplary powers" as the purpose of amending the law. Commercial law, procedural law and other modern legal systems. Most of these people who were trained by the practice of law practice became the figures in the legal and political circles in the period of the Republic of China. A large number of legalists trained in the law school attached to the Law Museum became important sources of judges and procurators in the new-style judicial offices at all levels in the late Qing Dynasty and the early Republic of China. Finally, from the perspective of modernization, this paper examines the historical contribution of the revised Law Museum and its revision activities to the modernization of Chinese law.
【學(xué)位授予單位】：湘潭大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2008
【分類號】：D929
本文編號：2192680
[Abstract]:In recent years, driven by the New deal craze and Shen Jiaben fever in the late Qing Dynasty, the academic circles also extended the perspective to the decade of law revision activities in the late Qing Dynasty, and a number of valuable academic achievements appeared. However, the institution that presides over the revision of the law is either intentionally or unintentionally ignored. The purpose of this paper is to restore the historical features and historical value of the revised Law Museum. Since it is "restore", this article should be based on "examination", supplemented by "theory", "theory" because of "examination" born, "examination", "theory" combination; "examination" is not tired of its details, "theory" point to stop. This article follows the thought of "examination", taking time as the clue and revising the law hall as the red line, explains clearly the background, main work and achievements, historical function of the revised law museum. The revised Law Museum was born when the ruling building of the Qing Dynasty was crumbling, and was always the new policy in the late Qing Dynasty. It was one of the newly established institutions in the New deal of the late Qing Dynasty to reform the law, and all its work was subject to and served the overall situation of the New deal in the late Qing Dynasty. It was set up by the law house of the Ministry of Criminal Affairs in 1904 and was initially attached to the Ministry of punishment (Law), which became independent in 1907 because of the controversy between the departments and courts; however, this independence was nominal and the author preferred to call it "semi-independence". There are two reasons: first, although it is called the legislature, it has the power to initiate but not to decide on the law. All amended laws have to be submitted to the Constitutional Office for approval. Second, it is called independence from the Ministry of Law. In fact, there is not a full-time lawman, all the staff, from the Minister of Law revision to the general librarian, are part-time. Although it is a semi-independent institution, under the leadership of Shen Jiaben, the revised Law Museum, under the leadership of Shen Jiaben, brought together a large number of modern intellectuals with knowledge of modern law and politics, and set up the criminal law and civil law with the aim of "breaking down compromises and exemplary powers" as the purpose of amending the law. Commercial law, procedural law and other modern legal systems. Most of these people who were trained by the practice of law practice became the figures in the legal and political circles in the period of the Republic of China. A large number of legalists trained in the law school attached to the Law Museum became important sources of judges and procurators in the new-style judicial offices at all levels in the late Qing Dynasty and the early Republic of China. Finally, from the perspective of modernization, this paper examines the historical contribution of the revised Law Museum and its revision activities to the modernization of Chinese law.
【學(xué)位授予單位】：湘潭大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2008
【分類號】：D929
【參考文獻(xiàn)】
相關(guān)期刊論文 前7條
1 吳澤勇;;清末修訂《法院編制法》考略——兼論轉(zhuǎn)型期的法典編纂[J];法商研究;2006年04期
2 宋四輩;清末刑法典編纂體例和結(jié)構(gòu)的變化[J];南都學(xué)壇;2004年02期
3 張生;《大清民律草案》摭遺[J];法學(xué)研究;2004年03期
4 畢連芳;試析清末修律中對中國傳統(tǒng)法律理念的突破[J];經(jīng)濟與社會發(fā)展;2003年07期
5 張從容;析1910年《法院編制法》[J];暨南學(xué)報(哲學(xué)社會科學(xué)版);2003年01期
6 李秀清;法律移植與中國刑法的近代化——以《大清新刑律》為中心[J];法制與社會發(fā)展;2002年03期
7 馬作武,陳影;清末法律移植的現(xiàn)代反思[J];學(xué)術(shù)研究;2005年02期
相關(guān)博士學(xué)位論文 前1條
1 高漢成;簽注視野下的大清刑律草案研究[D];中國政法大學(xué);2005年
，本文編號：2192680
本文鏈接：http://sikaile.net/falvlunwen/sflw/2192680.html
教材專著
