【作者】 陈广秀；

【导师】 霍存福；

【作者基本信息】 吉林大学 ， 法学理论， 2008， 博士

【摘要】 早在公元前407年,中国古代刑法总则就在李悝制定的中国历史上第一部封建法典《法经》中诞生了。这一时间远远早于东、西方其他各国。此后,将有关定罪量刑的原则性规定单独作为法典的一篇,成为中国历代编纂成文法典的固定体例。这一体例形式包括其中的制度理念,对后世及国外立法产生了深远的影响,被朝鲜、日本、越南等东亚诸国在立法中竞相仿照沿袭。在思维定势上,中国古代刑法总则有其独有的、鲜明的特色,表现为直觉思维、群体本位和延续意识。与东西方古代典型成文法典和近现代刑法典中总则相比较,由于中国古代独特的政治、经济和文化背景,以《唐律疏议·名例》为代表的中国古代刑法总则不仅形式完备,体例结构完善,而且内容丰实,理念先进成熟。现代刑法中的罪刑法定和罪刑均衡理念以及对刑事责任进行主观考量的原则、刑罚的矫正意识,在以《唐律疏议·名例》为代表的中国古代刑法总则中都已经有了圆熟完满的的表达,这不能不说是中国人对世界法律制度文明的重大贡献。更多还原

【Abstract】 General Principles in Penal Codes demonstrated people’s excellent ability in abstraction and the highly developed technology in law-making. It showed mature rational culture and the degree of progress of legal system even the entire system of civilization. General principles in Ancient Chinese Penal Codes not only arised far earlier than the East and West, but also its structure was as favorably as those in modern Penal Codes. This was an important contribution to world’s legal civilization. However, such an important cultural phenomenon of the law has not be given sufficient discussion so far. Most of the scholars have paid attention to the specific culture or legal system in ancient criminal law, no one has studied in the view of“General principles”.So, this paper tries to analyze the development、thinking、achievement and the unique ancient political, economic and cultural background of General principles in ancient Chinese Penal Codes from the perspective of legal system civilization.The main idea of this paper is that General principles in ancient Chinese Penal Codes not only arised far earlier than the East and West, but also had a well-structured style、advanced concept and unique thinking. This is an important contribution to world’s legal system civilization .The innovations of this article reflect in several following aspects mainly: Firstly,“General principles in ancient Chinese Penal Codes”serving as a theme is an innovation itself. Up to now no doctoral dissertation or treatise of this subject has been published. Interested system and theory of General principles in ancient Chinese Penal Codes has been given macroscopic and systematic study for the first time in the view of“General principles”and from the perspective of legal system culture in this paper.Secondly, this paper has deeply and fully Studied the unique thinking of General principles in ancient Chinese Penal Codes from the perspective of intuitive thinking, group-based sense and continuity consciousness.Thirdly, this paper generalizes accomplishment on form and theory of General principles in ancient Chinese Penal Codes from the perspective of comparative law.Fourthly, this paper analizes the season of accomplishment on General principles in ancient Chinese Penal Codes from the view of cultural, political and economic background.In addition to the introduction and concluding remarks , there are four chapters in this paper .these chapters state the development of General principles in ancient Chinese Penal Codes and generalize the thinking, accomplishment and its cultural, political and economic background of General principles in ancient Chinese Penal Codes. There are more than 11 million words in this paper.Introduction includes three aspects. Firstly, it points out the intrinsic value of General principles in Penal Codes. General principles in a Penal Code shows the form of Penal Code has been in the highest stage .It advanced the formal rationality and patched up the delayed and undistributed effect of the criminal law. General principles in Penal Code Shows the maturity of rational culture and the degree of progress of legal system even of the entire civilization. Secondly, this paper explains the evolution and concept of General principles in ancient chinese Penal Codes in brief. Thirdly, it gives us a general introduction to the main idea and the logic of demonstration in this paper , lies out a broad outline of the full text.In chapter 1, it explains vertically the evolution of General principles in ancient Chinese Penal Codes .The emergence of principles in Penal Code was the product of the development of thinking and technology. Before General principles come into existence, it firstly performed desolate thingking and system. It developed more or less from the thing king about General principles in customary law to general provisions in written law , to independent General principles in Penal Code.“Law Scripture”,which was compiled by Li Kui In 407 BC ,was the first feudal written Code in Chinese history. And“laws of the Tang dynasty”, which was designed in 651 A.D represented the highest achievement of Penal Code in ancient China. Take the two code as milestone , the evolution of General principles in ancient chinese Penal Codes can be divided into four stages :the sprout phase before the compilationg of“Law Scripture”;the newly established and development phase from the compilationg of“Law Scripture”to the compilationg of“laws of the Tang dynasty”; the mature phase of the compilationg of“laws of the Tang dynasty”; the successive phase after Tang dynasty . General principles in Ancient Chinese Penal Codes deeply influenced the law-making in Korea, Japan, Vietnam, Okinawa and other East Asian countries ,its structure and thinking had been copied by those countries one after another .In chapter 2, it generalizes the thinking of General principles in ancient chinese Penal Codes which was different from the west . General principles in ancient Chinese Penal Codes reflected the unique thinking of intuitive thinking, group-based sense and continuity consciousness. In respect of intuitive thinking, Law and the natural laws、human feelings were placed in an interconnected system to seek for the logic of the law. In respect of group-based sense, General principles in ancient Chinese Penal Codes attached more importance to the social values of a person, Groups consisted of two basic forms: One is based on blood ,such as family, one outside the family, such as colleagues, neighbors and even the entire country. The role of the law lied to keeping the groups everlasting: on the one hand, confirming its existence as a whole; On the other hand, standing up for the stratum in internal group so as to ensure its eternal survival. In respect of continuity consciousness, General principles in ancient Chinese Penal Codes paid attion to retrospect the history of principles. At the same time ,it thinked that inheriting former criminal laws was the best way for law-making.In Chapter 3, it explains achievement on General principles in ancient Chinese penal codes from the point of view of“shape”and“spirit”. In respect of“shape”, General principles in Ancient Chinese Penal Codes arised far earlier than the East and West . General principles had been independent in“Law Scripture”and“laws of the Tang dynasty”.During the same period, the Penal Codes in the other ancient East and West were still compilations of specific cases and simple provisions, there were not independent General principles in them. On the other hand, the structure and legislative technology of General principles in Ancient Chinese Penal Codes was as perfect as those in morden Penal Codes . In respect of“spirit”, the theory in General principles in Ancient Chinese Penal Codes was very mature and advanced. A lot of principles in Modern criminal law ,such as fundamentals of criminal law、criminal responsibility、educationgal punishment, can be found in General principles in ancient Chinese Penal Codes. This is a important contribution to civilization.In Chapter 4,it looks into the causes about achievement on General principles in Ancient Chinese Penal Codes through the background of“Law Scripture”(which is the first written Code in Chinese history)and“laws of the Tang dynasty”(which represents the highest achievement on ancient Chinese Penal Codes). In respect of why General principles in ancient Chinese Penal codes arising much early than the East and West, this paper thinks that the Warning States period when“Law Scripture”arising was a violently choppy era. Political structure’s change, economy’s development and culture’s prosperity laid a foundation for the compilation of“Law Scripture”.However, Legal system culture of other well-known classical Eastern and Western civilizations in the same period couldn’t be the same developed as china’s for various reasons. Either no written Code ,or no independent General principles in the Code. In respect of the reason for General principles’perfection in ancient Chinese Penal Codes , this paper thinks that persistently developing agriculture, continuous civilization , centralized empire and mature bureaucrat system and advanced selects mechanism since the Qin dynasty laid a solid political, cultural and economic base for the perfection of General principles in ancient Chinese penal codes . So that , General principles in ancient Chinese penal Codes reached a glorious peak of the legal curture in the Tang Dynasty.On the concluding remarks, this paper points that achievement on General principles in ancient Chinese penal Code and its reason should be deeply studied .更多还原