摘要
本文利用诸多珍贵的历史资料,复原了《钦定大清刑律》从1906年的预备案到1911年的钦定第六案共七个法案的编纂历程,辨析期间的变革、修订情况,发掘出一些鲜为人知的典故。法典修订论争中新旧两派的区别并非绝对泾渭分明,而且新派在立法中无视程序要求的做法也极为不妥。
Based on plenty of precious historical resources, this paper reviews the 7 editions＇ compilation of the Criminal Law of the Qing Dynasty Approved by the Emperor （i. e. , the New Criminal Law of Qing Dynasty） from the preparative scheme in 1906 to the 6th edition in 1911, analyzes the changes and revisions in that period and digs out some unknown allusions.
Firstly, the difference between the School of Law （New School） and the School of Rite （Old School） on the New Criminal Law is not distinct. The new school had already had a plan for special clauses at the period of the 1st edition, laying the foundation for the later Supplementary Articles and Temporary Rule of the New Criminal Law which intensively remained the traditional rites. It was most likely Ji Tongjun, an expert on the old law and holding a post in Fa Bu, who drafted the five articles of the Supplementary Articles. Secondly, according to the decision of Zi Zheng Yuan, fornicating with a woman without husband should be treated as a crime and included into the text of the code. However, under the strong administrative intervention from Xian Zheng Bian Cha Guan, that decision was ignored by the New Criminal Law and only written into the Temporary Rule, which was really a defect in the legislative procedure. In the legislative process, although the intention of the new school to protect the New Criminal Law was meritorious, their actions violating the procedural justice were regrettable. Both in its content characteristics and legislative procedure, the Criminal Law of the Qing Dynasty Approved by the Emperor was a compromise between the old and the new.
出处
《法学研究》
CSSCI
北大核心
2011年第2期193-208,共16页
Chinese Journal of Law
关键词
《钦定大清刑律》
礼法之争
清末新政
Criminal Law of Qing Dynasty Approved by Emperor, agument between rites and law, new policy of late Oing Dynasty
