西夏与唐宋盗窃法比较研究——兼谈西夏对中华法系的继承与发展

A Comparative Study on the Theft Laws of the Western Xia Regime and the Tang and Song Dynasties——Also on the Inheritance and Development of the Western Xia Regime to Chinese Legal System

“盗窃”是中国最古老的犯罪之一,历代皆有严格法律予以规制,以期维护社会稳定。文章对比研究了《天盛改旧新定律令》《亥年新法》《唐律疏议》《宋刑统》及《庆元条法事类》中关于盗窃罪的条文,发现这些法典均设置了亲属内外有别、宽宥弱者、严惩官盗僧窃以及团伙共谋作案等主体处置措施,涵盖了牲畜、人员、佛神祀物以及官府文书等盗窃对象,量刑上均依据慎刑恤刑、告赏、邻里互助以及重盗重罚等原则。同时,西夏法典融入了大量具有党项民族特色的法律元素,完善了群盗、重盗等制度。概言之,西夏法典在充分吸收中原王朝立法精髓的同时,结合本民族社会经济状况以及司法实践的需要进行了创制和发展,在中华法制史上极具特殊地位。

Theft is one of the oldest crimes in China,and there have always been strict laws to suppress it in order to maintain social stability.This paper compares and studies the provisions on theft in the“Tiansheng Revised and New Law Decree”,the“Hainian New Law”,“the Review of Tang Laws”,“the Song Penal System”,and the“Qingyuan Laws and Regulations”,and finds that handling measures on the subjects,such as differentiation between inside and outside of the family members,forgiving the weak,severely punishing the official thefts,monks thefts,and the gangs complicity in the crimes,have been set up in these codes,covering the objects of theft such as the livestock,the people,the Buddha s sacred objects,and the heavy thefts,etc.,and the punishments are all based on the principles such as prudent punishment,sympathetic sentence,rewards for confession,mutual assistance among neighbors,and heavy punishment for heavy thefts.At the same time,the Code of Western Xia incorporated a large number of legal elements with the characteristics of the Dangxiang nationality,and perfected the system of group theft and heavy theft.In a nutshell,the Western Xia Code,while fully absorbing the essence of the legislation of the general plains dynasty,was cultivated and developed by combining the social and economic conditions of the nation and the needs of judicial practice,and it had a very speical status in the history of the Chinese legal system.