汉代持质的立法、执行及流变

The Law and Practices about Crime of Kidnapping in the Han Dynasty and Its Transformation

后世所谓持质的法律概念,在西汉初期的律文中并不明晰,而是包含于劫人求财的律文中。后来虽有专门的法律对持质加以规范,但持质作为独立的罪名,仍存于律之外的法律形式中。在经历了一系列的立法变迁后,至曹魏修订新律时才正式入律。从史料可知,汉代立法、执法处理持质犯罪的基本思路是维护社会治安,消灭盗贼,而不是保障人质的人身安全或人身权利,所以法律要求官吏不顾人质安全,对劫持者进行攻击,但执法者却常常对豪贵者加以特殊对待。与此同时,持质所属律篇的变化,则反映出对相关犯罪概念认识的深化与立法标准的改变。

Being a legal concept in later ages, crime of kidnapping was not definitely clear in the early Han dynasty, but regulated in the legal provision of ＂hijacking for property＂. Thenceforth, although the specific regulations treated kidnapping as an independent crime, but no special law regarding kidnapping existed. After a series of legislative changes , kidnapping had been first officially written into law of the Wei dynasty. As the historical resources of the Han dynasty show, the core idea of legislation and its enforcement of kidnapping aimed at maintaining public security and wiping out robbers and thieves, not for protecting the personal safety and rights of the hostage. Thus the law required the officials to attack the hijacker without caring about the safety of the hostage, but law-executor often gave the rich and powerful hostage special treatments. When the category of kidnapping code changed, it marked deepening of legal concepts of crimes and the change of legislation standards.