《大清刑律草案》立法宗旨的历史错位

1907年修订法律馆上奏《大清刑律草案》后,中央各部院堂官、地方各省督抚、将军都统陆续上奏对《大清刑律草案》的签注意见,对《草案》所奉行的“折衷各国大同之良规,兼采近世最新之学说”的立法宗旨提出了质疑和批评。《草案》第27章关于堕胎之罪的规定、第30章关于略诱及和诱之罪的规定、第306、307条关于决斗罪的规定有“食洋不化”的倾向,表明《草案》的起草者没能做到“会通中西”;总则第11条、第49条关于刑事责任年龄的规定、分则第3章关于国交之罪的规定属于世界首创,对当时的中国社会确是“拔苗助长”。貌似先进的理性主义立法宗旨因为不能适应中国当时的国情和实际状况而出现了历史错位。

After the draft Criminal Code of Great Qing Dynasty was submitted by the Ministry for the Revision of Laws in 1907, its legislative aim of ＂incorporating the good rules recognized by all the major countries of the world and drawing on the latest legal theories of modern times＂ was questioned and criticized by ministers of the central government as well as governors and generals of local governments. The provisions on the crime of abortion in chapter 27, the crime of kidnapping and trafficking in women and children in chapter 30, and the crime of duel in articles 306 and 307 had the tendency of ＂swallowing foreign laws without digestion＂; and the provisions on the age for criminal responsibility in articles 11 and 49 in the Chapter on General Principles and crimes relating to diplomatic relations in chapter 3 were the first such provisions in the world, but they had the effect of ＂trying to help the shoot grow by pulling it upward＂ in the Chinese society at that time. As a result, the seemingly advanced Criminal Code based on rational legislative aim was actually an example of historical dislocation because it failed to take into consideration the national conditions in China.