刑法における錯誤論の系譜 : 唐律から現代法への示唆
HLJ_43-3_246.pdf 1.44 MB
Genealogy of Mistake in Criminal Law: Suggestions from Tang Code to Modern Law
Tang Code is the most representative law in Chinese history, and its rich contents and how to compile with “Remarks” had any influence at all times and in all over the world. The difference between the mistake theory of modern criminal law and traditional Chinese “Wu Sha” (mistaken killing) was always discussed. However, the concept of “Shi”(manslaughter) and “Guo Shi” (negligent homicide) was never created by the laws of the Qing dynasty, and it was proved that it already existed in the era of Zhou. In the era of Zhou, it would be strictly speaking that killing a person by mistake is not a “crime”. Zhang Fei, the jurist in the Wei and Jin dynasties submitted the concept of “Guo Shi” for the first time in the “Note Table”. According to Zhang, “unfaithful so-called negligence”, that is, “inadvertently committed crime is negligence”, and the concept was further completed in the Tang dynasty.
Although the theory of crime in the Tang dynasty is not like such as direct intent, indirect intent, negligence due to overconfidence, etc., found in modern law, the Tang Code does have its theory of crime. Especially when it violates human health and life, it can be said that the discretion of the crime is very fine. For example, there are theories of “six kills” in the murder crimes of the Tang dynasty, the order of the above six murder crimes was arranged with the degree of subjective malignancy as the standard from severe to mild. The word “Wu” appears 190 times in the articles of the Tang Code, and on all such occasions refers to the deviation of the perpetrator's subjective recognition from the correspondent legal liabilities.
The relationship between the theory of mistaken killing and their correspondent penalties is a key point for the research of Wu Sha in the Tang Code.
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