近代中国刑法中亲属相盗之罪刑变迁(1902—1949)

The Evolution of the Larceny Between Relatives in the Modern Chinese Criminal Law(1902-1949)

晚清民国时期亲属相盗立法与司法实践逐渐走向趋同。立法上,亲属相盗须告诉乃论。此举为了维护亲属关系,营造和睦的家庭氛围。而司法实践中,亲属相盗案件在中央一级司法档案中记录逐步减少,这与亲属相盗之维护家庭和睦的立法思想有很大关系。晚清民国时期中央审判机关致力于司法与立法紧密融合,延续了部分中国传统律学的亲属法伦理,即维护血缘亲情,亦抛弃了"尊卑有别、长幼有序"的传统伦常制度。可见,揭示晚清至民国时期亲属相盗的立法与司法实践,对于我们认识中国一直以来的亲属法文化有着重要意义。

The legislation and the judicial practice of the larceny between relatives has become conver- gence gradually in the Late Qing dynasty and Republie period. From the legislation level, the larceny between relatives is that aceeptance at complaint only, which in order to maintain the re- lationship and establish the harmonious family atmosphere. From the judicial level, the ease of larceny between relatives in the central level judicial file reduced gradually, which associated with the legislation thought of maintenance family harmonious of the larceny between relatives. In the late Qing dynasty and Republic period, the central judicial organization devote to the integration between the legislation and the judicial practice, which lasted for the relative ethics of the Chinese traditional law partly, namely maintain blood affection and abandoned ＂Sequence of rich and poor, difference of old and young＂ of the traditional ethics system. It is thus clear that we can see the important significance of the Chinese relative legal euhure form the legislation and the judieial practice of the larceny between relatives.