秦唐间盗罪的变迁：游牧法因素介入下的连续性-《南京师大学报》（社会科学版）

文章信息/Info

Title:: The Evolution of Theft Crimes from Qin and Tang Dynasties: The Continuity under the Influence of Nomadic Legal Factors

Keywords:: conviction based on the value of the stolen goods; theft not punishable by death; multiple compensation; nomadic tribal law

摘要:: 中原农耕区的盗罪具有多维性，在“狭义”盗罪外，还有特殊物之盗、特殊主体之盗、特殊手段之盗等。对狭义盗罪，要计赃定罪，实行“实刑主义”，不处死刑。相反，财产性是游牧族群法主要甚至唯一的维度，重财轻人，盗罪至死是草原盗罪的一大特征。在一般情况下，游牧群族法实行“赔偿主义”。盗罪的维度主要由文明类型所决定。秦唐间盗罪的连续性，是在游牧族群法因素介入下的“连续性”。《唐律》规定的倍备制度是游牧法传统在汉地“文明化”的结果。包括盗罪在内的中华法治文明的连续性，乃是游牧文化因素介入下的连续性。农、牧互动以及在这种互动过程中从多元凝聚为一体，是这种连续性背后的秘密。

Abstract:: The crime of theft stipulated by the laws of the Chinese Dynasties had multiple dimensions. In addition to the so-called “narrow” theft crimes（i.e., property theft crimes), there were also theft crimes involving special objects, special subjects, and special means. As to the “narrow” theft crimes, it was necessary to evaluate the stolen goods for conviction and implemented the principle of “actual punishment”. In contrast, the legal system of nomadic tribes prioritized property over human life, making death punishment for theft a prominent characteristic of theft crimes on the grasslands. In general, when sentencing for theft, the principle of “compensation” was implemented. The dimension of theft was mainly determined by the degree of civilization. The theft crimes between Qin and Tang dynasties had a considerable continuity, but this was a “continuity” influenced by the influence of nomadic legal factors. The double compensation system stipulated in the Tang Code was the result of the “assimilation” of the nomadic legal tradition in Han territories. The continuity of Chinese culture, including theft crimes, was influenced by nomadic cultural factors. The interaction between agriculture and animal husbandry and the convergence of diverse elements into a unified whole in this interaction was the underlying secret of this continuity.