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| 文章编号：1672-3104(2021)02-0081-13 |
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论中国古代刑法篇目编纂的理念与标准——兼谈秦汉后法典“以罪统刑”说的片面 |
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李勤通 |
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（湖南大学法学院，湖南长沙，410082） |
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| 摘 要： 秦汉以后刑法篇目或法典编纂的“以罪统刑”说存在片面性。在秦汉律的法篇续造中，部分篇目具有以罪统刑的特征，但根本上以“完成行政事项”为需求。自曹魏律始，罪的主体、行政事项、罪的行为性质等逐渐成为刑法典篇目编纂的三重标准，其中，只有罪的行为性质跟以罪统刑关系密切。三重标准在历代刑法编纂中权重有异，随君、臣、民三者关系的变迁而变化。以罪的主体为编纂标准的篇目历代数量变化不大；以罪的行为性质为标准的篇目在开始比重最高；以行政事项为标准的篇目，随着君尊臣卑、君主臣仆关系的确立，其数量逐渐超越以罪的行为性质为标准的篇目。 |
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| 关键词： 以罪统刑；法篇续造；法典编纂；曹魏律；君尊臣卑 |
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On the idea and criteria of the compilation of the chapters of the Chinese ancient penal code: Also on the one-sidedness of the statement of "deciding punishments by crimes" in law codes after Qin and Han |
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LI Qintong |
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（School of Law, Hunan University, Changsha 410082, China） |
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| Abstract: There exists one-sidedness in the statement of "deciding punishments by crimes" in the law codes codified and compiled after Qin and Han dynasties. In the code rebuilding during the Qin and Han dynasties, part of penal codes had the characteristics of penal complex by crimes but fundamentally reflected the practical needs for managing administrative matters. Since Wei, the subject of crimes, administrative matters and the nature of the act of crimes became the triple standards for compilation of the criminal codes, of which only the nature of the act of crimes was closely related to penal complex by crime. The triple standards weighed differently in the codification of criminal laws in the later dynasties and changed with historical changes of the relationships among the monarch, officials and the people. The chapters classified according to the subject of crimes did not change much compared to those classified according to administrative matters. The administrative matters pertaining to the nature of penal action began to weigh highest, and as the status of officials became inferior to the emperor in the later dynasties, the chapters of penal codes classified according to administrative matters increased than ever. |
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Key words: penal complex by crimes; code rebuilding; codification; the code of Wei; officials inferior to the emperor |
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