晚清民国时期亲属相殴之罪刑变迁

The Changes of Crime and Punishment of Beating Between Relatives in the Late Qing Dynasty and the Republic China

晚清民国时期,由大清律"亲属相殴"律变为近代中国刑法典中的"杀伤罪",后又变为"伤害罪",都仅规定卑幼殴打尊长的行为。可见,亲属相殴的条款没有完全否决,依然保护尊亲属的权利。这说明在刑法近代化过程中,固有伦理与继受法律一直处于博弈之中,可见从身份等差立法向平权立法无限趋近。而我国当前刑法典缺失"亲属相殴"的规定,无法区别亲属相殴与常人相殴的区别,忽视了人类最重要的关系——亲属关系,故亲属相殴应该入律,且加重处罚,将亲属和家庭间的情感作为我国法律所要保护的法益之一。

In the late Qing Dynasty and the Republic of China, from ＂beating between relatives＂ of the Qing Code, experiencing ＂the killing crime＂ of the modern China Criminal Code, to ＂injury crime＂, what were prohibited are only the behavior of the humble young beating the elder. The provision was not completely rejected, which still protected the rights of relatives. It showed the inherent ethics and the received law had been in the game, which was ultimately reaching to affirmative action legislation from the identity of arithmetic legislation. However, the current Chinese Criminal Code misses ＂the beating between relative＂, so that it cannot distinguish the differences between relatives and normal. It violates the most important relationship between relatives. Therefore, the provision should be brought into the law and aggravate punishment in the process of criminal modernization, which makes the relatives and the emotion as the legal interest of Chinese law.