略论秦汉律中的盗杀

Study on Robbery-Murder in the Law of Qin and Han Dynasties

秦汉时期法典中的"盗"含义逐渐丰富,涉及"盗"犯罪的法律规范也逐渐体系化。成立"盗罪"的核心要素是"取非其有","盗杀"的含义应当做广义解释,威势取财过程中致人死亡的犯罪行为皆应作为"盗杀"来考察。根据竹简秦汉律所见"盗杀"及相关犯罪行为,结合传世文献中的记载进行归纳、梳理,可见秦汉律中"盗杀"的定罪量刑概况。秦汉之后,刑律中"盗杀"含义发生了变化,"威力强取"致人死亡的行为及相应处罚不再集中规定,而是散见于针对谋叛、强盗、劫囚、略人略卖人等犯罪行为的处罚内容。

The meaning of"robbery"was gradually enriched in the code of Qin and Han dynasties,and the legal norms involved in the crime of"robbery"were gradually becoming systematic.The core element of the"robbery crime"is"obtaining others’property",and"robbery-murder"should be broadly interpreted,therefore the criminal behaviors that cause death during obtaining property by the threat of violence should all be considered as it.According to"robbery-murder"and related crimes of the law of Qin and Han dynasties recorded on bamboo slips,in combination with the records in the literature handed down,the general situation of conviction and sentencing of"robbery-murder"can be summarized.After the Qin and Han dynasties,the meaning of"robbery-murder"in the criminal law has been changed.As a result,the crimes that cause death during obtaining property by the threat of violence and their corresponding punishments can be found in some penalties of different crimes,such as"treason","robbery","hijacking prisoners"and etc.rather than be stipulated concentratedly.