监守自盗,汉代即有记载。~([1])唐律之后,“监守自盗”的概念基本定型,相关规定也愈加规范。在《大清律例》中,监守自盗是六赃律的重要组成部分,“为罚最重,故独居一等”~([2])。中国古代以“刑”为中心构建刑律罪刑体系,并先后形成了以肉刑为中心的“旧五刑”体系和以劳役自由刑为中心的“新五刑”体系。在监守自盗律罪刑体系中,刑罚居于中心地位,是监守自盗罪研究较为核心的组成部分。 Guard against theft, that is recorded in the Han Dynasty. ~ ([1]) Tang law, “guard against theft ” concept of the basic stereotypes, the relevant provisions are also more standardized. In the “Qing law”, guarding theft is an important part of the six loopholes, “the highest penalty, so living alone” ~ ([2]). In ancient China, the system of crime and penalty of criminal law was constructed based on “punishment ”, and the system of “old five penalties” centered on the memorial of corporal punishment and “the new five penalties” centered on the freedom of servitude were formed successively. In the system of self-defeating crimes and crimes, the penalty is at the center and is a core part of the crime of guarding against piracy.