论中国古代刑法中罪所侵害法益的构成

The Constitution of Legal Interest Violated by Crimes in Chinese Ancient Penal Laws

中国古代刑法中的罪可以用是否适用刑罚来确定基本范围,定罪以天道秩序为根本合法性来源,以公、私法益为根本保障目标。古代之所以采取主观定罪,源自儒法两家的犯罪预防思想,法家重视对国、君等公益的保障,儒家重视通过刑罚对教化结果予以反馈并再次教化。儒法都主张通过对犯罪过程的最早阶段进行惩罚以最大限度地保护法益。中国古代刑法中的法益构成以公、私两元为基础,以国、家、个人为主要内容,而国、家法益重于个人法益。这些法益从形态上又可以区分为实体法益与抽象法益。抽象法益主要包括秩序法益和情感法益:秩序法益是指以君主为核心的人、财控制秩序;情感法益指的是子女、臣下应有的规范性情感。

The basic scope of crimes in ancient Chinese criminal law can be determined by whether the penalty was applied, in which it took the order of heaven as the fundamental source of legitimacy, and took the public and private legal interests as the fundamental guarantee goal. Its essence lay in the infringement of legal interests. The subjective conviction in ancient China was rooted in the thought of crime prevention in Confucianism and law. Legalists emphasize the protection of the public welfare of the state and the monarch,while the Confucianists attached importance to the feedback and re-education of the results of education through punishment. They all advocted to protecting the legal interest to the maximum extent by punishing the earliest stage in the criminal process. The constitution of legal interest in ancient Chinese criminal law was based on public and individual;the main content was state, home, and individual, and the legal interest of state and family was more important than that of individual. It can be divided into substantive legal interest and abstract legal interest. Abstract legal interest mainly included order legal interest and emotional legal interest.The legal interest of order refers to the human and financial control of the order with the monarch as the core,while the emotional legal interest refers to the normative emotion that should be possessed by humble children and subordinates.