论西夏刑事法律制度

发布时间：2019-03-06 13:08

【摘要】：西夏是由具党项族所建立的一只西北少数民族政权,在党项族内迁之后,它便在唐朝政权范围内生活。因此,整个西夏王朝的各个方面都受到了唐朝的影响,具有中原特色。西夏建国之后,便制订了西夏历史上唯一的一部法典《天盛改旧新定律令》,由于受到唐朝的影响,西夏的法典也继承了《唐律疏议》。但是,西夏并没有一味的照搬唐律,而是在唐律的基础上,根据少数民族的特点,进行了一定的修改。本文主要考察了西夏的刑事法律制度的立法思想、刑种及罪名、立法原则,然后将其与《唐律疏议》的相比较,从而得出西夏刑事法律制度的特点,同时对产生这些特点背后的原因进行了简要的分析。这也是本文写作目的之所在。本文主要分为了四部分。第一部分论述了西夏刑事法律制度的历史渊源,主要论述了西夏刑事法律制度对唐律的继承和发展。第二部分论述了西夏刑事法律制度的主要内容。该部分从立法思想、刑种及罪名、立法原则三个方面展开。西夏立法思想和立法原则都深受儒家孝道思想、等级制度、家族伦理制度等思想的影响,在这种思想的影响下,西夏刑法的最终目的仍然是维护统治阶级的利益和家长的不可侵犯的地位。西夏对于刑种和罪名相对与唐律稍微有些变化,但是总体基本一致。第三部分论述了西夏刑事法律制度自身的特点---与《唐律疏议》刑事法律制度相比较。因为西夏深受唐文化的影响,因此《天盛律令》很像唐律的孪生兄弟。除了和唐律一样深受儒家思想的影响外,西夏刑事法律制度也体现出了符合自身发展的新特点。西夏刑罚严酷,而唐律刑罚平允,体现了西夏少数民族尚武的特点。西夏法典与唐律一样,都是以刑法为主,民法和行政法独立存在,只是三者出现了交叉地带。第四部分论述了西夏刑事法律制度特点出现的原因。从西夏的政治、经济、文化三个方面进行了论述。首先,政治方面的原因主要是内外矛盾激化,统治者为了维护其统治及阶级利益和统治秩序,制定了严酷的刑法。其次,经济原因。经济发展,使得西夏开展了对外贸易,促进西夏与唐朝文化的交流。最后,文化方面的原因。西夏统治者为了展现自身特点设置了“小番文字”,但却翻译了很多儒家经典,孝思想对西夏影响极为深刻,这是刑事立法思想深受儒家影响的根本原因。党项民族自身尚武的文化特色,也使得党项人从小就养成了彪悍的、嫉恶如仇的性格,这是西夏刑法严酷的原因所在。
[Abstract]:Xixia is a northwest minority political power established by the party and Xiang nationality. After it moved inside, it lived within the Tang Dynasty regime. Therefore, all aspects of the Western Xia Dynasty were affected by the Tang Dynasty, with the characteristics of Central Plains. After the founding of the Western Xia Dynasty, the only law order in the history of the Western Xia Dynasty was formulated. Due to the influence of the Tang Dynasty, the law of the West Xia also inherited the Law of the Tang Dynasty. However, the Xixia did not copy the Tang Law, but on the basis of the Tang Law, according to the characteristics of ethnic minorities, made certain modifications. This article mainly examines the legislation thought of the criminal legal system of Xixia, the types of punishment and charges, the principle of legislation, and then compares it with Tang Law neglect, so as to get the characteristics of the criminal law system of Xixia. At the same time, the reasons behind these characteristics are briefly analyzed. This is also the purpose of this article. This paper is divided into four parts. The first part discusses the historical origin of the criminal legal system of the Xixia, mainly discusses the inheritance and development of the criminal legal system of the Xixia to the Tang law. The second part discusses the main contents of the criminal legal system of Xixia. This part starts from three aspects: legislative thoughts, criminal types and charges, and legislative principles. Under the influence of the thoughts of filial piety, hierarchy and family ethics, the legislative thoughts and principles of Xixia were deeply influenced by Confucian filial piety, hierarchy and family ethics. The ultimate purpose of the Xixia Criminal Law is to safeguard the interests of the ruling class and the inviolable status of the parents. Xixia relative to the type of punishment and charges and Tang law slightly changed, but generally consistent. The third part discusses the characteristics of the criminal legal system in Xixia-compared with the criminal legal system in Tang Dynasty. Because Xixia was deeply influenced by Tang culture, Tiansheng Law was much like the twin brother of Tang Dynasty. Besides being influenced by Confucianism as well as Tang Law, the criminal legal system of Xixia also embodies the new characteristics which accord with its own development. The punishment of Xixia is severe, while the punishment of Tang Dynasty is flat, which reflects the characteristics of the minority's martial-fighting in Xixia. The West Xia Code, like the Tang Law, is dominated by criminal law. Civil law and administrative law exist independently. The fourth part discusses the reasons for the appearance of the characteristics of the criminal legal system in Xixia. This paper discusses the political, economic and cultural aspects of Xixia. First of all, the main political reasons are the intensification of internal and external contradictions, the rulers in order to maintain their rule and class interests and ruling order, the establishment of a harsh criminal law. Secondly, economic reasons. With the development of economy, Xixia developed foreign trade and promoted the cultural exchange between Xixia and Tang Dynasty. Finally, cultural reasons. In order to show their own characteristics, Xixia rulers set up "Xiaofan script", but translated a lot of Confucian classics. Filial piety has a profound influence on Xixia, which is the fundamental reason why criminal legislation is deeply influenced by Confucianism. The cultural characteristics of the Party and its own martial arts have also made the Party item people form a fierce, cynical character from an early age, which is the reason for the harsh criminal law of the Western Xia Dynasty, which is the reason for the harshness of the criminal law of the Western Xia Dynasty.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D924;D929

【参考文献】