从保辜到因果关系的承与变——以民国大理院及最高法院判例为中心

Inheritance and Change in the Development from Baogu System to Causation Theory:Focusing on the Judgements Made by Dali Yuan and Supreme Court

“保辜”是传统中国旧律中对殴伤等案件认定刑事责任所专门设定的律条。此制行之达两千余年之久,时至晚清民初的法律变革,终遭扬弃,而被近代欧陆刑法的“因果关系”所取代。究其实,此两者间虽有时空的断裂性,却也有某种程度的类似性。保辜虽受制于历史的局限性,完全以时间的经过作为标准,采取法定形式主义,未免过于僵固;但在当时的时空背景及社会条件下,能以客观的经验对因果联络关系加以适度的节制,具有限制滥罚的作用,尤其是利用辜限为被害人延医调治的保辜义务,仍有其一定的实用性与合理性。而近世刑法则单纯就实质因素考,并以此作为因果关系存否的基准,属于不成文的不法构成要件,否定了辜限,体现出因果关系的另一新发展阶段。

Baogu(保辜)was a criminal law article specially set to determine the responsibility in handling the criminal cases and in particular those involving assault in the traditional Chinese law.This system had been implemented in the ancient China for about 2000 years till the late Qing period and the early years of the Republic of China,when it was replaced in the judicial reform by the causation theory of modern European criminal law.Although the two systems are separated in time,there is also a certain degree of similarity between them.Subject to the historical limitations,the system of Baogu is somewhat too rigid by taking the passage of time as the only standard and following legal formalism.However,in the context of time and space and social conditions,this system was practical and rational in that it could moderate the causal link with objective experience,thus having the effect of limiting abusive penalties,and in particular it imposed the obligation upon the offender to protect the victim by providing medical treatment.In modern times,the criminal law,on the other hand,was based purely on substantive factors,which were taken as the criterion for determining the existence of causation.As an unwritten element of illegality,this was a new development of the causation in criminal law and replaced the old system of Baogu.