中国刑法百年发展的回顾与反思——以台湾地区的几个刑法议题为中心

Review and Reflection of China’s Criminal Law in One Hundred Years:Focus on Several Topics of Criminal Law in Taiwan

自清末沈家本(1840-1913)主导修律开始,中国法制正式迈向了现代化的进程。在沈家本主导下所修之律法,尽管多数未及颁行,甚至尚处于草案阶段,但仍然对此后中国法制产生了不容忽视的影响。其中的《大清新刑律》堪称今日之台湾地区刑法的基石。本文以台湾地区的几个刑法议题为例,观其自《大清新刑律》以来之流变,略述其现今所引发之争论,并稍作评议。这些议题包括:杀害直系血亲尊亲属罪之存废争议、通奸罪之除罪化争议、内乱罪之修正(加列须以暴力或强制为手段且已实施为要件)、台湾地区戒严时期政治犯之平反与补偿、死刑废除之争议。藉由对这些议题的审视,希望能对两岸法制之发展有所裨益。

As commissioned under an Imperial edict, Jia-Ben Shen （1840-1913） launched a legal reform during the late Qing Dynasty, which marked the beginning of the modernization of the Chinese legal system. Although many of the statutes proposed under the leadership of Shen remained at the draft stage and were not promulgated or enforced, they nevertheless made a remarkable impact on the development of the Chinese legal system. Among them, the ＂New Criminal Code of the Qing Empire＂ in a sense remains a cornerstone of the criminal code prevailing in Taiwan. This article examines certain current issues involving criminal law in Taiwan to illustrate the evolvement of the criminal law following the introduction of the ＂New Criminal Code of the Qing Empire＂ as well as providing our commentary. Such issues include the following： whether the killing or injury of a direct lineal ascendant （i.e., a parent or grandparent） constitutes a separate crime that is punishable in a drastically more severe manner compared to the killing or injury of an ordinary person; whether to treat adultery as a crime; the amendment of the rules governing the crime of domestic insurrection to specify that the elements of such crime is the use of violence or coercion and that such illegal activity has actually been commenced; the exoneration of and compensation for political prisoners incarcerated, punished or sentenced during a period of martial law; and whether to abolish the death penalty. It is hoped this paper will provide some insight on the further development of the criminal law for each side of the Taiwan Strait.