| 摘要: | 唐律在中國法制史中，實具承先啟後之地位。因其上集秦漢、魏晉之大成，下立宋、元、明、清之軌範，故其影響深遠。蓋唐律自《永徽疏》成以後，遂為歷代制律之準繩，其脈絡之迹，顯而易見。《唐律疏議》的頒定，象徵著傳統中國進入法律制度的成熟期，歷經宋、元、明，以迄於清季，皆深受唐律的影響。
探討家內秩序則會涉及到禮教思想，而禮教是傳統中華的重要文化特徵，社會中的思想、制度以及日常生活的行為，均受其影響。在家庭（族）中依照禮的規定，對於個人的身分及義務，均有詳盡的規範。因此，研究家庭（族）中親屬之間的犯罪問題，有助於理解禮教精神於法律層面的完善與家內秩序的運作實況。此外，親屬相犯是指犯罪主體與客體之間具有親屬關係的特殊身分，欲解決此類犯罪問題，這就涉及到兩者的親疏、尊卑、長幼，犯罪的構成、認定及量刑的加減等，均與此有關。因此，研究親屬相犯問題，具有重要意義。
本文將側重於《唐律．名例律》、《唐律．賊盜律》及《唐律．鬬訟律》等三篇的討論。本文選擇以上三篇進行分析的原因有二：一是《唐律．名例律》乃整部《唐律》其適用範圍較廣之通例；其二是與「親屬相犯」有關之規範，多集中於三篇中。
本共分為六章。第一章「緒論」敘述研究動機與目的，並定義本文「親屬」的範圍；第二章「親屬相犯的立法基礎與發展」討論唐代親屬相犯的立法基礎，並簡述唐以前親屬相犯規範；第三章「親屬相犯與家內秩序」就唐律對家父長權的維護，及服制入律對量刑的影響，分析尊卑之間同罪異罰的差異性；第四章「親屬相犯的法律責任」討論唐律中親屬相犯的相關律文，並附以司法實例，檢視司法官員在審理親屬相犯案件時，是否依唐律而判？第五章「親屬相犯的侷限」討論親屬相犯本身具有哪些侷限；第六章「結論」總結親屬相犯的行為是按親疏、尊卑、長幼之別來定罪量刑的，因輩分及服制而有所不同。這是法律發展成熟後的必然結果，法律律文漸趨煩瑣而具體。
Tang code has position of serving as a link in fact in the history of Chinese legal system. Because incorporate the strong points of Qin Han, Wei Jin on it, make the criterion of human conduct which set up the Song, Yuan, Ming and Qing Dynasties, so influence is far-reaching. Build the intersection of Tang and law since the Tánglǜ shūyì to become, make criterion of law, the intersection of train of thought and it its for successive dynasties then? ,Obvious. To issue, definitely, symbolize traditional China, enter legal mature period of system " the intersection of Tang code dredge, discuss ", go through Song, Yuan and Ming Dynasty, in clear season so far, are all influenced by Tang code deeply.
The order will involve the Confucian or feudal ethical codes thought to canvass the family, and the Confucian or feudal ethical codes is the traditional Chinese important culture characteristic, the behaviors of thought, system and daily life in the society, are influenced by it. In the family ' In accordance with gift, as to personal identity and obligation, there are exhaustive norms in China. So, study the family (the clan) The crime question between China's relative, contribute to understanding the spirit of Confucian or feudal ethical codes is in completion and home of the legal aspect the operation of the order is live. In addition, it mean that has special identity of relative's relation between subject of crime and object that the relative makes, want to solve problem of this kind of crime, this one that involves the two is close and distant, one is low, long and young, the adding or subtracting etc. of composition, asserting and measurement of penalty of the crime, relate to this. So, study the relative and make the problem, it is significant.
It lay particular emphasis on this text Ming Li law、Ze Dao law and Dou Song law. Wait for the discussions of three. Selected works this select three the above, go on, analyze for two reasons: First, Ming Li law example law of the law is his applicable scope's wider general rule of the whole Tang code; Second the norm related to the fact that ' the relative make ', concentrate on three more.
Originally divided into six seals altogether. Chapter one ' introduction ' narrates research motive and purpose, and define the range of this text ' the relative '; Chapter two ' the legislative foundation which the relative makes discusses the legislative foundation that the relative made of the Tang Dynasty with development ', sketch the intersection of Tang and former relative, break the rules Fan; Chapter three ' the relative makes with order in the family ' Tang code's maintenance of my father's long right, and the clothes is made into the impact on measurement of penalty of law, with the different difference that fines of the crime when it is low to analyze one; The relevant law that Tang code's relative makes is gentle that ' the legal liability which the relative makes of chapter four ' is discussed, and enclose it with the judicial embodiment and look over department law officers are while hearing to the relative and making the case, judge in accordance with Tang code? Chapter five ' limitation that relative make ' discuss relative make what limitations itself have; Chapter six ' the conclusion ' summarizes the behavior that the relative makes not to declare measurement of penalty guilty according to close and distant, a low, long and young one, different to some extent because the seniority in the family and clothes are made. The inevitable outcome after this is developed operation by a law, legal law is gentle and convoluted and concrete gradually. |
