清代法律和司法实践对共同谋杀之首犯与从犯的认定

On Accusation of the Principal Criminal and Accessory in Joint Murder in Laws and Judicial Practice of Qing Dynasty

根据清律"谋杀人"条,按照其在共同谋杀中的作用,共同谋杀的犯罪人被分为首犯和从犯两类,其中从犯又分为加功者、不加功者和从而不行者三种。同时,清律中所附的明代万历十五年条例对区分各共同犯罪人特别是从而加功者与从而不加功者作了严格的限定,即"助殴伤重者"方以加功论。但是这一认定加功的标准在司法实践中并未得到遵守。官员们认定加功与否的标准多与清初律学家沈之奇的观点一致。道光五年对万历十五年条例中规定的加功的认定标准进行了修改,即将"助殴伤重"改为"下手助殴"。直到清末的《大清现行刑律》,该条例中规定的造意与加功的认定标准等未再改变。需要指出的是,清律中总则部分"共犯罪分首从"条与分则部分"谋杀人"条中关于首犯与从犯的区分标准及处罚原则不统一的情形并非孤例。而自民国以来,我国刑法中关于共同犯罪人的区分与处罚原则又各有变化。

According to the regulations on ＂murder＂ in Qing Penal Code,criminals in joint murder can be classified as principal and accessory,and the latter can be further classified into three types as aggravated assistance,non-aggravated assistance and omission.Moreover,in Regulations in the year 1587 of Ming Dynasty which was attached to the Qing Penal Code,the aggravated assistance was so rigorously restricted that only ＂those assisted battery and caused aggravated injury＂ could be accused.However,such standard had never been applied in judicial practice.In Qing Dynasty,judges applied the said standards conforming to opinions of Shen Zhi-qi,expert and scholar of law in early Qing.In 1825（the fifth year of the reign of Emperor Daoguang）,the standard prescribed in 1587 was revised to ＂actively assisting battery＂.Such revision ever lasted till the Currently Operative Penal Code of Qing Dynasty.It is necessary to note that the classification standard of joint crime in general provisions of Qing Penal Code was different from those in specific provisions in crime of murder,and such disparity was common in the Code.Besides,the classification standards and punishment rules in joint crimes have differed ever since Republic of China.