中国古代刑法典的编纂体例和结构特点——兼论中国传统刑法文化的作用和影响

The Compiling Style and Structure Feature of the Ancient Chinese Penal Code——Concurrently on the action and influence of traditional Chinese penal code culture

在特定的历史条件下,中国古代刑法典在编纂体例和结构上呈现出以下特点:由总则和分则两部分组成;采用刑事实体法与刑事程序法合一的编纂体例;由低层次的“以刑统罪”向高水平的“以罪统刑”的方向转变和发展;分则篇目依据犯罪行为对刑法所保护的社会关系的危害大小,从重到轻进行排列;具有民刑不分、诸法合体的特征;只规定了刑事责任及其刑罚制裁的实现方式。这些特点体现了当时的立法宗旨,对于维护古代社会秩序起了重要作用,对于中国古代法律制度和近代以来的中国“法治”建设产生了重大而深远的影响。

Under the special historic condition, the compiling style and structure of ancient penal code manifested the following features: It consisted of general rules and branch rules 5 the compiling style of combining criminal entity law with criminal procedure law; turning and developing from the lower level of 'penal law decides the crime' to the higher level of 'the crime decides the penal law'. The subjects of branch rules were arranged from light to heavy according to the harm extent of the criminal offence that jeopardized the society protected by penal laws j having the feature of not to distinguish between the civil law and penal law and integrating various laws into one; only stipulating criminal responsibility and its realizing mode of punishment sanctions. Such features embodied the legislative purpose then and played important roles in the maintaining the ancient social orders, which exert important and profound influence on both the ancient Chinese legal system and the construction of 'government by law' since recent China.