唐律“坐赃”考

发布时间：2018-04-26 18:30

本文选题：唐律 + 坐赃　；参考：《甘肃政法学院》2014年硕士论文

【摘要】：自夏有贪墨之罪,赃罪就逐步发展。至秦汉而有“坐赃”之记载,然而仍仅是二字表面之意,即因赃而犯罪的意思。历经数代,儒法合流已趋成熟,而封建五刑最终确立。伴随着大唐傲然于世,唐律也成为代表中华法系的最高成就,而“坐赃”也自此成为独立罪名流传于世。作为赃罪立法集大成者的“六赃”体系,首次在唐律中得到正式确定。而“坐赃”罪也开始具有其自有的构成特征,以及自己的量刑规则、定罪原则。然而针对这一罪名的专门研究则很少,其犯罪构成理论、相关律疏的整理都少有涉及,因此整理、总结相关史料中“坐赃”罪的案例以及相关律疏,结合现代刑法理论分析其犯罪构成及其特点,可以很好地弥补这一罪名的研究缺失。通过与现行刑法中相关法条的对比,一方面可以发现“坐赃”理论中值得借鉴的部分,一方面可以更好地展现“坐赃”罪的相关理论。全文共分五章。第一章,绪论。本章通过研究缘起点明研究唐律“坐赃”的原因,继而通过研究现状的介绍,从侧面印证针对“坐赃”研究的必要性,最后写明本文的研究思路和方法,以及结构与创新。第二章,定义及构成特征。通过现代刑法理论来解读“坐赃”的犯罪构成是本章的关键,同时通过追溯源流,以及文献考证,寻找“坐赃”的定义。第三章,罪刑详情及处罚原则。通过将律疏中涉及“坐赃”的内容进行彻底总结与归纳,使“坐赃”罪在唐律中的分布及其规则、原则展露无遗。第四章,司法实践。通过对于史料中涉及“坐赃”案例的统计与分析,进一步比较立法与司法的不同处断及其原因。第五章,唐律“坐赃”与现行法规的比较。主要将“坐赃”的规定与现行刑法中类似规定进行对比,同时简要评述涉及到其他规范的部分内容。通过对于唐律“坐赃”立法内容整体性及具体性的归纳、总结,并与现行刑法及相关规范的比较,可以发现唐律“坐赃”具有其独立的定罪原则、量刑规则、立法目的。其具有区别于其他赃罪的特点,也补充了其他赃罪的缺漏,起到了全面的“兜底”性作用。而司法实际上的表现同时也表明“坐赃”前代的广义用法依然并存,恰恰也起到了对于实践中赃罪的广泛补充作用。
[Abstract]:Since summer has the crime of corruption, the crime of stolen goods on the gradual development. To Qin and Han Dynasty, there is a record of "sitting on stolen goods", but still only two words surface meaning, that is to say, the meaning of crime because of stolen goods. After several generations, the combination of Confucianism and law has matured, and the feudal five penalties were finally established. Along with the great Tang Dynasty, Tang Law has become the highest achievement representing the Chinese legal system, and the crime of "sitting on stolen goods" has been handed down to the world since then. The "six spoils" system, as the legislative aggregator of the crime of stolen goods, was formally established in the Tang Dynasty for the first time. The crime of "sitting on stolen goods" began to have its own characteristics, as well as its own sentencing rules, conviction principles. However, the special research on this crime is rare, the theory of crime constitution and the arrangement of relevant laws are seldom involved. Therefore, the author summarizes the cases of the crime of "sitting on stolen goods" and the relevant laws in the relevant historical materials. Combining the theory of modern criminal law with its constitution and characteristics, it can make up for the lack of research on this crime. Through the comparison with the relevant articles in the current criminal law, on the one hand, we can find that the theory of "sitting on stolen goods" can be used for reference, on the other hand, we can better show the relevant theory of the crime of "sitting on stolen goods". The full text is divided into five chapters. Chapter one, introduction. This chapter points out the reasons for the study of "sitting on stolen goods" in Tang Law, and then proves the necessity of studying "sitting on stolen goods" through the introduction of the present research situation. At last, it describes the research ideas and methods, as well as the structure and innovation of this article. The second chapter, the definition and the constitution characteristic. It is the key of this chapter to interpret the criminal constitution of "sitting on stolen goods" through the modern criminal law theory. At the same time, through tracing back to the source and researching the literature, the author tries to find the definition of "sitting on stolen goods". Chapter III, the details of the crime and punishment principles. By summing up and summing up the contents of "sitting on stolen goods" in the law, the principle of the distribution of the crime of "sitting and loot" in the law of Tang Dynasty and its rules are revealed. Chapter four, judicial practice. Through the statistics and analysis of cases involving "sitting on stolen goods" in historical materials, the differences between legislation and judicature and their causes are further compared. Chapter five, the comparison between the law of Tang Dynasty and the current laws and regulations. This paper compares the provisions of "sitting on stolen goods" with similar provisions in the current criminal law, and briefly comments on some of the contents of other norms. By summing up and comparing with the current criminal law and related norms, it can be found that the law of Tang Dynasty has its independent conviction principle, sentencing rules and legislative purpose. It is different from other crimes of stolen goods, but also complements the omission of other crimes, and plays a comprehensive role. The performance of the judicial practice also shows that the broad usage of the previous generation of "sitting and loot" still coexists, which also plays a role in the extensive supplement of the crime of stolen goods in practice.
【学位授予单位】：甘肃政法学院
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D929;K242;D924

【参考文献】