| 摘要: | 早自三代時期起，古代中國的法理思想即有著關於懲治「故意犯」、「過失犯」及「錯誤犯」之相關規範；降及晉世，張斐在所撰《律解》中更明確地說：「其知而犯之謂之故，意以為然謂之失……不意誤犯謂之過失……」；馴及唐律，對於此三者（故意犯、過失犯、錯誤犯），乃能有著更清晰的區別。按，通說以為，唐律在吾國法制史之發展過程上，實居於承先啟後的地位，並影響及於東亞諸國，如日本、朝鮮、越南等是。即便在今日，我國現行法雖曰繼受自歐西之大陸法體系，然現行刑法中，固仍多見唐律之影響，此亦誠堪注目。因此，本文即以唐律為核心，檢討自先秦時代以迄唐代為止，關於處分「故意犯」、「過失犯」及「錯誤犯」三者之相關規範；其次，本文在分析唐律關於處分此三者（「故意犯」、「過失犯」及「錯誤犯」）之律文規定後，指出若以「殺人罪」為例做比較研究，則唐律對於「故殺」處分最重，其次是「誤殺」，而「過失殺」則處分最輕。
The law principles about ＂the intentional offender＂, ＂the negligent offender＂, and ＂the voluntary manslaughter＂ could be traced into the old Chinese legal theories in the Three Dynasties of Xia, Shang, and Zhou. Thereafter in the Jin Dynasty Zhang Fei clearly pointed out: ＂〔the criminal〕 who offended with intentions is the intentional offender; 〔the criminal〕 who offended with malice aforethought but under a mitigating circumstance is the voluntary manslaughter; 〔the criminal〕 who offended with a negligence is the negligent offender. Then, the distinctions within those three kinds of criminals were further clarified in the Tang Code. Generally speaking, the Tang Code is with a key position in China's traditional legal system and influenced many East Asian countries, such as Japan, Korea, and Vietnam. Today, our criminal laws, even though being made according to the principles of European continental law system, still receive some heritages from the Tang Code. Basing on the Tang Code, this paper discusses the principles about ＂the intentional offender＂, ＂the negligent offender＂, and ＂the voluntary manslaughter＂ with the period from the Pre-Qin to the Tang Dynasty. Finally, in cases involving someone were killed the intentional offenders were punished most harshly, the voluntary manslaughters less, and the negligent offenders were at least according to the Tang Code. |
