论“亲亲相隐”制度及其借鉴
发布时间：2018-10-29 09:13
【摘要】：“亲亲相隐”从思想萌芽到形成完善的法律制度,经历了历朝历代的演变,该制度的不断细化和在实践中的不断贯彻,使中国传统法律思想中“儒法结合”、“礼法合治”下的人伦精神得以彰显,维护了家庭亲情关系,协调了一定的社会矛盾,保障了国家的长治久安,节约了一定的司法资源。尽管时代在不断前进,社会在不断发展,人类的亲情关系和家庭制度却始终存在,反映人类的亲情关系和家庭制度的伦理秩序和伦常道德仍然是必需的。只有当法律正确地体现人之常情时,法律才能有真正的权威,人们也才更容易接受法律,法律裁判才能使人心服口服。经过几千年的世代相承,“亲亲相隐”已成为中华民族文明进步过程中所创造的法律思想,并且此法律思想已进化成为一种传统的、民族的法律文化,上升为一种处于超稳定状态下的法律意识。有鉴于此,本文尝试对“亲亲相隐”进行研究,以期对我国立法、司法实践有所裨益。 本文共分为五个部分对“亲亲相隐”予以讨论。 第一部分,介绍“亲亲相隐”的内涵、起源和历史发展情况等；第二部分,对“亲亲相隐”原则所产生的中国传统社会基础及该原则的适用性进行分析；第三部分,介绍大陆法系国家、英美法系国家及我国港澳台地区立法中体现的“亲亲相隐”原则；第四部分,从人性的基本需要、正义性及法与道德等方面分析当代中国需要对“亲亲相隐”原则进行借鉴的合理性；第五部分,对传统社会的“亲亲相隐”制度与现代法律的冲突进行分析,并提出当代借鉴时需要注意的问题。
[Abstract]:From the thought germination to the formation of the perfect legal system, the "close relatives hidden" has gone through the evolution of successive dynasties. The continuous refinement of the system and its implementation in practice have led to the "combination of Confucianism and law" in the Chinese traditional legal thought. The spirit of human relations under the combination of etiquette and law has been demonstrated, maintaining family relationships, coordinating certain social contradictions, ensuring the long-term stability of the country, and saving certain judicial resources. In spite of the progress of the times and the development of the society, the family relationship and the family system always exist. It is still necessary to reflect the ethical order and common morality of the family relationship and the family system. Only when the law correctly embodies human common sense, the law can have real authority, people can accept the law more easily, and the judgment of law can make people accept it. After millennia of generations, "closeness between relatives and relatives" has become the legal thought created in the course of the progress of Chinese civilization, and this legal thought has evolved into a traditional, national legal culture. Rise to a kind of legal consciousness that is in superstable state. In view of this, this paper tries to study the "relatives and relatives" in order to benefit the legislation and judicial practice of our country. This paper is divided into five parts to discuss the concealment of relatives and relatives. In the first part, the author introduces the connotation, origin and historical development of "closeness between relatives and relatives", and analyzes the traditional social foundation and applicability of the principle of "closeness between relatives and relatives". The third part introduces the principle of "closeness of kinship" embodied in the legislation of civil law countries, Anglo-American law countries and China's Hong Kong, Macao and Taiwan regions. The fourth part, from the basic needs of human nature, justice, law and morality and other aspects of contemporary China needs to learn from the principle of "close relatives" rationality; In the fifth part, the author analyzes the conflict between the traditional system and modern law, and points out the problems that should be paid attention to when using for reference.
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D929
本文编号：2297268
[Abstract]:From the thought germination to the formation of the perfect legal system, the "close relatives hidden" has gone through the evolution of successive dynasties. The continuous refinement of the system and its implementation in practice have led to the "combination of Confucianism and law" in the Chinese traditional legal thought. The spirit of human relations under the combination of etiquette and law has been demonstrated, maintaining family relationships, coordinating certain social contradictions, ensuring the long-term stability of the country, and saving certain judicial resources. In spite of the progress of the times and the development of the society, the family relationship and the family system always exist. It is still necessary to reflect the ethical order and common morality of the family relationship and the family system. Only when the law correctly embodies human common sense, the law can have real authority, people can accept the law more easily, and the judgment of law can make people accept it. After millennia of generations, "closeness between relatives and relatives" has become the legal thought created in the course of the progress of Chinese civilization, and this legal thought has evolved into a traditional, national legal culture. Rise to a kind of legal consciousness that is in superstable state. In view of this, this paper tries to study the "relatives and relatives" in order to benefit the legislation and judicial practice of our country. This paper is divided into five parts to discuss the concealment of relatives and relatives. In the first part, the author introduces the connotation, origin and historical development of "closeness between relatives and relatives", and analyzes the traditional social foundation and applicability of the principle of "closeness between relatives and relatives". The third part introduces the principle of "closeness of kinship" embodied in the legislation of civil law countries, Anglo-American law countries and China's Hong Kong, Macao and Taiwan regions. The fourth part, from the basic needs of human nature, justice, law and morality and other aspects of contemporary China needs to learn from the principle of "close relatives" rationality; In the fifth part, the author analyzes the conflict between the traditional system and modern law, and points out the problems that should be paid attention to when using for reference.
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D929
【参考文献】
相关期刊论文 前5条
1 范忠信;亲亲相为隐:中外法律的共同传统——兼论其根源及其与法治的关系[J];比较法研究;1997年02期
2 肖敏;;亲亲相隐制度的解读与重构——以和谐社会为背景的思考[J];河南大学学报(社会科学版);2007年05期
3 张晋藩;论礼[J];社会科学战线;1998年03期
4 殷东伟;“亲亲相隐”与当代刑法实践[J];襄樊学院学报;2002年01期
5 王斌;;“亲亲相隐”对现代刑事法治基础的启迪[J];行政与法;2009年05期
，本文编号：2297268
本文链接：https://www.wllwen.com/falvlunwen/fashilw/2297268.html
