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法、理、情三者的关系一直是法律学人争论不休的议题。本文从司法的角度切入,利用《折狱龟鉴》与《名公书判清明集》中的案例,回答两个问题:一是天理的具体内容为何;二是天理与法律的关系为何,亦即天理对审判有何作用。天理的内容具有一定程度的确定性与一致性,大多指天性、天伦、人伦纲常,故多适用于亲属相争,而不适用于凡人相争。天理与法律的关系应分两个面相来分析:一是对受害者权益的维护;二是对加害者行为的惩罚。在前者,天理与法律平行而弥补其不足,没有导致司法的不客观、不确定或不一致。在后者,为了缝补受害人和加害人彼此的天伦,天理有时凌驾法律,以道德训诲代替刑罚,这其实跟传统司法“先教后刑”的原则相差不大,也使天理论述显得多余,因为三纲五常被抬举为不可违背的最高道理后,并未带来合乎比例的赏与罚,反倒多用来减免刑罚,这跟不谈天理的道德裁判者又有何分别呢?此外,跟法律一样,天理对加害人有时也束手无策。也许因触犯天理而加重刑罚的情况,在宋代以后比较多见,其原因值得进一步研究。
The relationship between law, reason and love has always been a topic of debate among legal scholars. This article from the perspective of the judiciary, the use of “prison turtle Kam” and “famous Mingjianqingming set” in the case, to answer two questions: First, the specific content of God's reason; the second is the relationship between God and law why That is, what is the effect of heaven on judgment? The contents of heavenly science have a certain degree of certainty and consistency, most of which refer to nature, grandchildren and human relations. Therefore, the content of heavenly principles is suitable for relatives to contend with and not for mortal conflicts. The relationship between heaven and law should be analyzed in two aspects: First, the protection of the rights and interests of victims; second, the punishment of perpetrators. In the former, the natural law is parallel with the law to make up for its deficiencies, without leading to the objectivity, uncertainty or inconsistency of the judiciary. In the latter, in order to sew the bonds between the victim and the perpetrator to one another, the act of God sometimes overtakes the law and moral punishment instead of the penalty, which in fact is similar to the principle of " Excess, because the three gangs of five are often uplifted as the highest principle can not be violated, did not bring the reward and punishment in proportion, but instead used to reduce the penalty, which is not talking about the moral justice judge what is the difference? In addition, with the law In the same way, the heavens can sometimes helpless the perpetrators. Maybe aggravating the penalty because of breaking the heavenly principle is more common after the Song Dynasty, and the reason deserves further study.