【作者】 刘晓林；

【导师】 霍存福；

【作者基本信息】 吉林大学 ， 法学理论， 2011， 博士

【摘要】 唐律集先代立法之大成,开后代立法之先河,集中体现了中国传统法制在立法技术、概念原理、观念文化方面的精华总成。时至清末,传统法制在西方文明的冲击下日渐式微,中华法系始为之解体。唐律与唐代法制的巨大影响随着东方文化的没落而逐渐受到忽视,但传统的制度与文化对当下社会、法治生活的影响仍然存在。唐律研究对于理解与借鉴传统法制意义重大,唐律研究的切入点当为唐律中具有基础性、一般性的问题。“七杀”在唐律乃至中国传统律学中最具代表性、是当时科学程度最高的概括。以唐律“七杀”为研究对象,有助于全面解析唐律所代表的中国传统律学在立法技术、法律原理、法制观念等方面所达到的成就。以研究内容为标准,可将本文主干分为三部分:唐律“七杀”的具体研究、整体研究与比较研究。唐律“七杀”立法的具体研究包括本文第二——六章,将唐律谋杀、故杀、劫杀、斗杀、戏杀、误杀、过失杀立法以律文为基础结合传世文献全面解析“七杀”立法的构成特征、罪刑详情与法律实践状况。唐律“七杀”立法的整体研究包括本文第七章“唐律‘七杀’立法中‘十恶’的出入”与第八章“唐律‘七杀’立法的内部结构”,这两章研究内容皆把“七杀”作为一个整体来考察其特质与结构。唐律“七杀”立法的比较研究涉及的是唐律与罗马法关于杀人罪立法之异同。基于两者相近的产生时间与迥异的历史文化背景及学界对于两者相关制度比较研究的不足,比较唐律与罗马法关于杀人罪的立法对于了解东西方立法技术、法律原理、法制观念与法律文化具有重要意义。全文共分九章。第一章,绪论。本章详细介绍了唐律的历史地位与特点、以“七杀”为唐律研究切入点的缘由、研究现状、研究主旨、研究方法与本文结构,并对本文在现有研究成果的基础上可能做出的创新与突破做了初步介绍。第二章,唐律“谋杀”研究。谋杀为唐律杀人罪之首,科刑最重、含义庞杂。从立法技术上,唐律分为典型的谋杀形态——共谋、“二人对议”与修正的谋杀形态——独谋、“一人同二人之法”;各自形态下,依据犯罪主体与谋杀对象间是否存在特殊身份关系分为一般谋杀与特殊谋杀;谋杀行为依据行为结果分为谋而未行、谋而已伤、谋而已杀三阶段。具体的谋杀行为在科刑上多参照别条律文而不见本条规定,又受《名例》中总则性律文与各篇分则中诸多“通则性条款”的影响,具体谋杀行为的科刑情况甚为庞杂。第三章,唐律“故杀”研究。唐律“故杀”之“故”含义为“杀伤之害心”,故杀为有害心而杀人。立法上,唐律通过肯定与否定双重列举区别了罪与非罪、此罪与彼罪。故杀在科刑上,采取概括规定、具体列举、比附论罪、轻重相举四层次相结合的方式,具体列举与比附论罪中,又可依犯罪主体与犯罪对象间是否存在特殊身份关系分为两类。律文还规定了适用于故杀科刑的特例。故杀在立法上并未与谋杀有较清晰的区分,由此在法律实践中产生的混淆直到清末始有明确界分。第四章,唐律“劫杀”研究。“劫杀”固定而系统的用法可追溯至《韩非子》,表示臣弑君。由汉至唐,“劫杀”有四种固定的用法。唐律中“劫杀”含义可概括为“劫财杀人”。唐律之劫杀不是独立的罪名,而是谋叛、劫囚、略人略卖人、强盗四种律文明确规定犯罪的加重情节。作为独立的犯罪形态,劫杀在主观方面、犯罪对象、犯罪行为、共同犯罪的形式上与其基本犯罪均有差异。劫杀在唐律中是一个完整的罪刑单位,但其不能绝对独立于基本犯罪。结合现存文献可知劫杀在唐代是一种普遍的犯罪,乱世尤甚,同时,案件多作为政治事件之附属来记述。立法者对之给予了极大的关注,但精当的立法在司法实践中并未完全贯彻。第五章,唐律“斗杀”研究。唐律斗杀可概括为因斗、殴之事而杀人,“斗”与“殴”为伤害行为前后相续的两个阶段。唐律在斗杀的时机条件、犯罪工具的使用、客观环境的判断方面皆有具体规定。斗杀之罪过形式,可概括为间接故意。唐代传世文献中,少有涉及斗杀案件的记载,但宋代史料在斗杀立法与司法方面有所记述,通过文献可知斗杀在性质上为一类重罪,常赦所不原;但法律实践中斗杀与相近犯罪的区分往往产生困难。第六章,唐律“戏杀”、“误杀”、“过失杀”研究。唐律关于杀人罪的立法中,戏杀、误杀、过失杀属于主观恶性较弱的犯罪,行为人主观上对致人死亡之结果均非直接追求,除“戏杀”的部分行为中行为人对致人死亡之结果有所预见,其他犯罪中行为人均未预见其行为会导致他人死亡。就律文对三类杀人犯罪的规定来看,其原则性规定多由《名例》做概括列举,这与唐律谋杀、故杀、斗杀立法差异较大;其具体罪刑大多比附斗杀科刑,部分比附故杀科刑,鲜有律文单独就科刑所做的列举。基于传统律学一脉相承的发展来看,明律中戏、误、过失杀人在同条规定也证明了戏杀、误杀、过失杀立法的相似性。第七章,唐律“七杀”立法中“十恶”的出入。隋《开皇律》首创“十恶之条”,其内容源自北齐河清三年奏上之《齐律》;形式上源自佛教“十恶”用语。此“十恶”之制至唐而相因不改。唐律“十恶”中,谋反、谋大逆、谋叛指代具体罪名;恶逆、不道、大不敬、不孝、不睦、不义、内乱则包含数个罪名。唐律“七杀”立法之中,谋杀、故杀、劫杀、斗杀之中若干具体犯罪行为入“十恶”,被认为是严重违背礼经、丧失封建道德、破坏封建伦常的行为,这些犯罪行为除法定刑罚外,还附加若干处罚特例;戏杀、误杀、过失杀则不入“十恶”,这可看作唐律立法“诛故贳误”观念的彰显。唐律“十恶”之中有“六恶”包含了“七杀”中的具体犯罪行为,即:谋叛、恶逆、不道、大不敬、不睦、不义,可见杀人犯罪对于统治秩序、封建伦常的侵害及统治者、立法者对其高度的重视。第八章,唐律“七杀”立法的内部结构。唐律中的“七杀”立法以行为人的罪过形式、犯罪意图为划分依据,其划分明显体现出了“故意中心论”,各种形式的过失犯罪在立法上都体现出了从属的特征,法律在定罪、科刑上都比照行为外观相近、相似的故意犯罪作出评价。具体的说,故杀为谋杀、劫杀、斗杀立法的核心与主干;谋杀、故杀、劫杀、斗杀为戏杀、误杀、过失杀立法的核心与主干。第九章,唐律与罗马法杀人罪立法比较研究。唐律与罗马法杀人罪立法存在立法体系与法制观念两方面的差异:立法体系方面,罗马法对具体罪刑和法律适用中的个别问题仅有单独列举而不见体系化的规定,唐律虽然在立法体例上也是客观具体的列举,但法典结构上已有总则与分则的区分,同时,若干具体列举的内容之间也有呼应。唐律所代表的中国传统律学对律例之间的关系、条文与法意的内在联系等方面所做的细致探讨为世界同时期所少有。法制观念方面,唐律对等级和宗法秩序的严格维护是罗马法无法企及的,而唐律通过对等级和宗法秩序的维护所表现出的是其深层立法原理与特质。通过对唐律“七杀”立法的具体考察、整体考察与比较考察,可以得出结论,唐律“七杀”立法各具特征与侧重,其立法技术、法律原理、法制观念方面的成就无疑代表了中国传统律学发展的最高峰。但通过考察法律规则的运行状况与司法实践,可发现唐律立法的优越与精当并未限制历代王朝官吏的舞文弄法,这也是法制在中国传统社会的命运。更多还原

【Abstract】 The Tang Dynasty laws, which integrate the legislation of tales before and opens offspring legislation of its kind, mainly reflect the whole essence of Chinese traditional legal system in the legislative technique, the concept of principle and the cultural concept. At the end of the Qing dynasty, the traditional legal system was gradually fading away under the impact of western civilization, and the Chinese legal system’s disintegration began.The great influence of laws and legal system of the Tang dynasty are gradually neglected with the demise of the Oriental culture, but the influence of the traditional system and culture on current society, rule of life still exists. The study of Tang Dynasty laws is of great significance for understanding and reference to the traditional legal system, the entry point of the research on Tang Dynasty laws is a basic and general question.“Seven traditional Chinese homicides”in Tang Dynasty laws, even in Chinese traditional laws, is the most representative and the contemporary highest scientific generalization. Taking“Seven traditional Chinese homicides”of the Tang Dynasty laws as research object can conduce to comprehensively analyze the achievements of Tang Dynasty laws, which represent the Chinese traditional law in legislation technique, legal principle, legal concept etc.With the research content as a standard, we can divide the body of the paper into three parts: the specific study, the overall study and the comparative study of Tang’s“Seven traditional Chinese homicides”. The specific study of the legislation of Tang’s“Seven traditional Chinese homicides”includes the second to the sixth chapter of this paper. In this part, I will combine the inherited documents to analyze their formative characteristics, particulars of offence and legal practice in legislation.The overall study of Tang’s“Seven traditional Chinese homicides”legislation includes chapter seven and chapter eight. Both of the two put“seven traditional Chinese homicides”as a whole to examine its characteristics and structure. What’s the comparative study of legislation of Tang’s“seven traditional Chinese homicides”relate to is the similarities and differences of homicide legislation between Tang dynasty and Roman laws. For the two have similar produce time with different historical and cultural backgrounds, and the academia lack for the comparative study of two different relevant systems, the comparison between Tang Dynasty laws and Roman laws in homicide legislation is of great importance for understanding eastern and western legislation technology, legal principle, the concept of legal system and legal culture.This paper is divided into nine chapters.The first chapter: introduction. This chapter details the historical status and characteristics of Tang Dynasty laws , the reason why put“seven traditional Chinese homicides”as the enter point, current situation of study, research subject, research methods and the structure of this paper, and at the same time, presents the innovation and the breakthroughs that may result on the basis of current research achievements.The second chapter:“the research on“murder”. Murder is the head of homicide and the heaviest sentence in Tang Dynasty laws, also meaning confused. From the legislation technique, Tang Dynasty laws is divided into two forms of murder: first, the typical form of murder --the collusion“discussion of the two”; second, the modified form of murder—to seek murder alone“the punishment of treating single criminal as the collusion”; under their respective form, the murder based on the existence of special relationship whether exists in the subject of crime and murder object can be divided into general murder and specific murder. The Act of murder according to the behavior results can be divided into three stages: stratagem and did not do it, murder someone but only hurt, murder and kill. Specific act of murder on the conviction and sentencing always in light of other status rather reference to this article, and by the influence of various“general provisions”in“Ming Li”, the specific acts of murder’s case of conviction and sentencing is quite numerous and jumbled. The third chapter: the research on“intentional homicide”in the Tang Dynasty laws. The meaning of“intention”in“intentional homicide”is“having the evil heart to kill or injury”, intentional homicide means one first have the thought, then do the killing. In the legislation, the Tang Dynasty laws distinguish crime from non-crime, this crime from that crime through the definite and negative double enumerations. The sentence of intentional homicide, takes the method of four stages combined: generalization, definite enumeration, the comparison of punishment and degree comparison. In definite enumeration and comparison of punishment, both of them can be divided into two sorts according to the existence of relationship between the criminal and the sufferer. The provisions also stipulate the particular case which is applied to the sentence of intentional homicide. There is no clear distinction between intentional homicide and murder in the legislation, so the misunderstandings occurred in the juristic practice existed until the late Qing Dynasty.The fourth chapter: the research on“homicide during robbery”in the Tang Dynasty Law. The fixed and systematic use of“homicide during robbery”can be traced back to Han Fei Zi, in which it indicates the regicide. From Han Dynasty to Tang Dynasty,“homicide during robbery”has four fixed using. The meaning of“homicide during robbery”can be summarized as“rob properties and kill people”. The“homicide during robbery”in the Tang Dynasty laws wasn’t an independent accusation, but serious nature of insurgence, plunder prisoner, trafficked people, bandit. They were all stated definitely in the law. As an independent crime pattern,“homicide during robbery”has differences with these basic crimes in the formal of the subjective aspect, crime target, crime conduct, corporate crime.“Homicide during robbery”is a complete crime unit in the Tang Dynasty laws, but it can not be definitely independent of the basic crime. According to the existed documents, it can be seen that“homicide during robbery”is an ordinary crime in the Tang Dynasty laws, especially in the unrest. And, most of the cases were recorded as subordinate to the political incident. The legislator had paid great attention to it, but the precise and appropriate legislation hadn’t completely carried out in the judicial practice. The fifth chapter: the research on“fighting to kill”of the Tang Dynasty Laws. Fighting to kill in Tang Dynasty laws can be summarized as being killed because of fights and beats. fights and beats are two consecutive stages in injure behaviors. The Tang Dynasty laws have concrete provisions of timing conditions, the use of guilty tools, and the judgment of physical situation in fighting to kill. The crime form of fighting to kill is indirect intent. The monumental documents of Tang Dynasty have little records on cases of fighting to kill, while the historical data of Song Dynasty have kept some account of legislation and judicature in fighting to kill. Through these documents, we can see that fighting to kill is a kind of Felony which can’t be forgiven. But, in legal practice, it’s hard to tell fighting to kill from the crimes alike.The sixth chapter: the research on“homicide because of joking”,“homicide by mistake”and“manslaughter”.“Homicide because of joking”,“homicide by mistake”and“manslaughter”were murder crimes with weaker subjective culpability. In the Tang legislation of guilty of murder, the actor does not chase for the death of the victim subjectively. They have not foreseen their behavior would cause the death of other people, except part of activities in“homicide because of joking”. From the provision, we can find that most of their fundamental ordains are enumerated in“Ming Li”which is distinct from the legislation of murder, intentional homicide and homicide during fighting in Tang Dynasty laws. Meanwhile, the majority of their concrete crime and punishment rely on homicide during fighting, others on intentional homicide. There was almost no provision that has independent enumeration of guilt. With the view of traditional laws coming down in one continuous line, the same provision about homicide because of joking, homicide by mistake and manslaughter in Ming Dynasty laws demonstrated the similarity in legislation of the three crimes.The seventh chapter: the differences of“ten evils”in the Tang’s legislation of“Seven traditional Chinese homicides”. Kai Huang law of Sui Dynasty initiated“ten evils”, whose content was derived from“Qi Dynasty law”, and form from the diction“ten sins”of Buddhism. And this institution didn’t change until Tang Dynasty. Rebellion, crimen laesae and treason felony are concrete accusation in“ten evils”of the Tang Dynasty, but murdering of senior kin, immorality, irreverence, impiety, inharmony, perfidy, internal disturbance all contain several charges. In the legislation of Tang“Seven traditional Chinese homicides”, some concrete charges of murder, intentional homicide, homicide during robbery, homicide during fighting were taken as parts of“ten evils”, which were considered as serious violation to courtesy, deprivation of feudal moral and destruction of feudal order. Beside legal punishment, these charges would also have additional penalty. Therefore, homicide because of joking, homicide by mistake and manslaughter hadn’t been brought into“ten evils”, which can be regarded as manifestation of“punish intentional crime severely and negligent offence lightly”of Tang’s legislation. In Tang Dynasty laws, six of“ten evils”contained concrete guilt of“seven traditional Chinese homicides”. They are treason felony, murdering of senior kin, immorality, irreverence, inharmony, perfidy. Through this, it can be seen that homicide had infringed ruling order of feudalism and feudal order of seniority in human relationships, and great importance the ruler and the legislator attached to them.The eighth chapter: the internal structure of the legislation of Tang’s seven traditional Chinese homicides. The legislation of seven traditional Chinese homicides was classified according to the form of culpability and criminal intent of the actor. This classification obviously reflected“the intention ental theory”. All forms of the negligent crimes reflected their subordinate characteristics in the legislation, for when the law wants to condemn and sentence the criminal; it should refer to the intentional crimes of similarity. Specifically, intentional homicide is the core of murder, homicide during robbery and homicide during fighting in legislation; murder, intentional homicide, homicide during robbery and homicide during fighting are the core of homicide because of joking, homicide by mistake and manslaughter.The ninth chapter: the comparative study on the Murder crime legislations in Tang Dynasty and Roman. Murder crime legislations in the Tang Dynasty Law and Roman law differ in two aspects, that is, the legislation system and the concept of law: from the aspect of legislation system, the Roman law has enumerations alone and no systematic stipulation in the concrete crime punishment and the concept of legality. The Tang Dynasty Laws also has objective concrete enumerations in legislation system, but the code structure has already divided into two parts: profile and special provisions. Simultaneously, the contents of certain enumerations have echoes with each other. The meticulous discussion of Chinese tradition law, represented by Tang Dynasty Laws, on the inner link of the code relations, articles and spirit of law are rare contemporarily. From the concept of legality, Tang Dynasty Laws has strict maintenance to the hierarchy and the order of patriarchal system. Roman law is unable to compare with Tang Dynasty Laws in this aspect, and Tang Dynasty Laws manifests deeper legislative theory and particularity through protecting the hierarchy and patriarchal order.Through the concrete, overall and contrast inspection to the legislation of the“Seven traditional Chinese homicides”in the Tang Dynasty Laws, we can draw the conclusion that the legislation of the“Seven traditional Chinese homicides”in the Tang Dynasty Law has its own characteristics and emphasis. There is no question that its accomplishments on the legislative technique, the principle of law and legal concept represented the peak of the Chinese traditional law study. But through the inspection to the operation of the legal rules and judicial practice, the superiority and precise of the Tang Dynasty Laws had not limited the government officials in all previous dynasties misusing the law can be found. This is also the destiny of the legal system in the Chinese traditional society.更多还原