清末“国事犯”观念的引进、论辩与实践

The Concept of "State Criminal" in the Late Qing Period:Introduction,Debate and Practice

传统法制将"谋反"等罪列为"十恶之首",不仅处以极刑,而且亲属缘坐,依关系亲疏,处以斩首、阉割、发遣等刑罚。但是自近代以后,西方法律理论中的"国事犯"理论从各种渠道渗入,《大清律例》中的谋反、谋大逆之罪变为《大清新刑律》中关于内乱、帝室之罪,不仅立法宗旨大变,而且取消了缘坐之律,甚至对于正犯的刑罚也减轻不少。清廷最后几年镇压革命党的实践,也部分受此观念转变的影响。这种法制上的转变,反映清廷决心以西方为榜样建立新法制,同时又因涉及传统礼教和自身的生死存亡,不得不犹豫再三,在实践上时有背离。这也折射出清末最后十年法制改革的最大难题:在全面学习西方法制的同时,如何保守传统礼教的核心地位。

The traditional legal system listed 'conspiracy against the state' and related crimes as 'the first of the ten evils.' Not only would conspirators be executed,their relatives would also be subject to decapitation,castration,exile,and so on, depending on how closely they were related to the conspirator.However,in modern times,the Western legal concept of 'state criminal' filtered into China through various channels,and the crimes of conspiracy against the state and conspiracy against imperial sites,found in the Qing Legal Code,became crimes involving domestic rebellion and the imperial family,found in the Qing New Criminal Laws.Not only was this a radical change in the purpose of the laws,the extension of punishment to relatives was also abolished.Even the penalties imposed on the conspirators themselves were reduced.In its last several years,the way that the Qing court suppressed revolutionaries was partially affected by this conceptual shift.On the one hand,this change in the legal system indicated that the Qing court was determined to build a new legal system modeled on the West.On the other hand,because this change impinged on traditional ethics and the court's very survival,the court had to be very cautious,and its practice frequently deviated from the path.This also reflects the most difficult problem facing legal reform in the last ten years of the Qing period:how to preserve the core position of traditional ethics while comprehensively learning from Western legal systems.