摘要
故杀是中国古代法中的一种杀人类型。相对于另外一种古老的杀人类型谋杀,故杀是较晚出现的一个概念。在更早的时期,与故杀接近的概念是贼杀。西晋张斐对"贼"进行了解释,所谓"贼",是"无变斩击"即突然的暴力杀人。北魏律中出现了故杀。在唐律中,故杀已经完全取代了贼杀。同时,在中国古代法中,故杀又是与斗杀紧密联系的概念,在我们可以看到的古代律典中,故杀一直与斗杀被规定在同一条文中。唐律从概念上对故杀与斗杀进行了界定,并将"斗而用刃"以及先斗殴、后"绝时而杀"两种情形视为故杀。但是在唐代,故杀与谋杀并没有明确的区分。到了明清时期,故杀的概念发生了很大变化,即明清时期仅以主观意图作为区分斗杀与故杀的根据,所以唐代的"斗而用刃"以及先斗殴、后"绝时而杀"这两种情形也可能被认定为斗杀。此外,明清时期的律学家对故杀与谋杀也进行了准确的区分。
Gu sha ( intentional killing) was a type of homicide in early Chinese law. Relative to mou sha, another type of time-honored homicide, gu sha was relatively a newer concept. However, zei sha, a much earlier type of homicide, bore striking similarity to gu sha conceptually. Zhang Fei, the jurist of the Western Jin Dynasty provided an explanation to "zei". Ac- cording to him, "zei" was conceptualized as "without any particular ground to hack and strike. " The Northern Wei code substituted gu sha for zei sha as a category of homicide and the Tang code completely finished this transformation. Howev- er, in the ancient codes of Chinese law, gu sha was also conceptually related to dou sha as evidenced by the frequent co- existence of the two terms in the same article of a code. The Tang Code attempted to define gu sha and dou sha. For example, the Tang Code defined gu sha as fighting and beating with edged weapons, or first beating and fighting, and then killing. However, the Tang Code failed to draw any distinction between the two concepts. During the Ming and Ch' ing Dynasties, the implications of gu sha saw huge transformations. This was because the two dynasties used the clients' sub- jective intention as the base to differentiate dou sha from gu sha. In this sense, the fighting and beating with edged weap- ons or first beating and fighting and then killing in the Tang Dynasty could also be possibly defined as dou sha during the Ming and Ch' ing dynasties. Additionally, the jurists of the Ming and Ch' ing made clear distinctions between gu sha and mou sha.
出处
《河北法学》
CSSCI
北大核心
2009年第4期83-89,共7页
Hebei Law Science
关键词
故杀
贼杀
斗杀
谋杀
gu sha
zei sha
dou sha
mou sha