固有倫常與舶來法律——「殺尊親屬罪」的歷史、觀念及其歸趨

Abstract

傳統中國刑律，禮與刑的關係始終糾葛難分。自一九○二年晚清變法修律以來，為了撤廢領事裁判權，在內外雙重壓力下，隨順因緣地導入了近代歐西新的法學理念，從此，個人、自由、權利本位的立法思想引進了古老中國的本土，固有的身分倫理法制隨之動搖。不禁要問，在近代以西方為主流的法律思潮下的刑事立法，究竟要如何對待倫理道德與法律規範之間的關係？要合？要分？合多分少？分多合少？要言之，倫理道德宜不宜法律化？刑法的法益保護思想，其內涵是否包含社會核心的價值理念？實際上，源自一九一一年一月《大清新刑律》的我國刑法，目前，仍存有多處所謂的「倫常條款」，凡此富於倫理道德意涵的規範，何以會在帝制中國刑律中陳陳相因，歷千年以上而凝滯不變？又為何會溫存迄今？與現代刑事法學的思潮有無牴牾之處？終將何去何從？本文擬先自法史學的角度，針對刑典上的倫常條款，特別聚焦在眾所矚目的「殺直系血親尊親屬罪」這個犯罪類型上，從事歷史沿革的考察，以明其演化軌跡；再從當今刑法思想的變動，剖析其理論基礎的變與不變；另從德、日等外國立法例觀察其存廢經緯，以窺其未來的可能走向。

Mercy and punishment in traditional Chinese criminal law had always been closely intertwined. In the wake of internal and external pressure from society to abolish consular jurisdiction, it became impossible to maintain the Chinese law systems and traditional Chinese laws were altered by the new legal thinking of Western countries introduced since the period of legislative reforms of the late Ch’ing Dynasty. Therefore, the new legislative thinking of individualism and liberalism were injected into ancient Chinese society and the original legal system of ethics was shaken. It is worthwhile asking how the new criminal legal thinking of individualism and liberalism will cope with the relationship between ethics and legislation. Should we combine them and, if so, to what extent? Should we separate them and, if so, to what extent? In other words, should we legislate ethics? Is it proper to have ethics legislated?At present, many so-called rules based on ethics exist in the criminal laws of our country. It is worth asking why such laws enriched with ethics have remained unchanged for more than a thousand of years? Why does such a situation still exist in modern criminal law? Does it conflict with the legal thinking of modern criminal law? What should their roles be in the future?This article intends to concentrate on the crime of “murder of relatives in one’s direct line of ancestry” in regard to the ethical rules, which attract the public’s attention; from the respect of legal history, the analysis will be conducted to examine historical developments to better understand how the legal treatment of ethics has changed over time. In addition, this article examines changes and the lack of changes in theoretical bases by analyzing the changes in legal thinking in modern criminal law. This article will also observe the standard to maintain or abolish it and forecast the future by analyzing the legislation of Japan, Germany and other countries.