古代蒙古奸罪法制考论——以刑罚秩序的构建与调适为视角

On the Legal System of Rape in Ancient Mongolia: from the Perspective of the Construction and Adjustment of Penalty Order

古代蒙古奸罪法制是蒙古政权统治者对其婚姻宗法秩序的最有力维护,能够保证婚姻家庭行为在合法可控的法制秩序内得以良好运行。古代蒙古治理奸罪,在立法上具有“诸法合体、重刑轻民”倾向,在司法上具有同罪不同罚倾向,这是由其当时的历史和社会发展所决定的。古代蒙古奸罪法制摆脱了松散任意化的家族式戒律烙印,完成了具有强制力保障的国家法体系的蜕变,这应该是一种历史性的进步。对古代蒙古奸罪的构成要件、治理体系以及量刑原则进行了考察论证,认为古代蒙古法制对奸罪的治理完成了从极端的死刑到罚畜刑、资格刑等刑罚体系的变革。这一多元化的治罪体系具有惩戒、预防和恢复等公法功效,是蒙古社会治理法制化的精华所在。

The ancient Mongolian legal system of rape was the most powerful safeguard for the patriarchal order of marriage by the rulers of Mongolian regime, which could ensure the good operation of marriage and family behavior within the legal and controllable legal order. Ancient Mongolia governed the crime of adultery, which had the tendency of “combining all laws, punishing heavily and neglecting the people” in legislation and different punishment tendency in judicature, which was decided by its historical and social development at that time. The ancient Mongolian legal system of rape got rid of the brand of loose and arbitrary family discipline and completed the sharp change of the national legal system with compulsory guarantee, which should be a historic progress. This present paper investigates and demonstrates the constitutional elements, governance system and sentencing principles of the crime of rape in ancient Mongolia. It holds that the ancient Mongolian legal system has completed the transformation of the punishment system from extreme death penalty to animal punishment and qualification punishment. This pluralistic system of punishment has the functions of public law such as punishment, prevention and recovery. It is the essence of legalization of social governance in Mongolia.