法律中的今古共同道德－以現行刑法觀察《清稗類鈔》獄訟兩篇為例

The Research on the Common Morality in Ancient and Modern Times Reflected in the Law: Taking the Study on ＂Chapter Prison and Chapter Lawsuit, Qing Petty Matters Anthology＂ by the Current Criminal Law for Example

張祐寧(Jang, You-Ning)

《輔大中研所學刊》 38期 (2018/04) Pp. 119-137

摘要

本文嘗試自法律角度切入來觀察小說的內容：先對法律與道德二者定義並略述；在合理推進、層層縮小範圍後，將法律的範圍限縮至刑法。次則逐條分析《清稗類鈔．獄頌類》及《清稗類鈔．獄頌類二》共計217則之內容。將每則中每個人物的每個行動，及其所造成之後果加以歸納並分類。在與現代並列比較後，以現行刑法規定檢視二者。期能在此二篇所蒐集與敘述的事件範圍內，自大而小、由遠到近地釐析有清一朝中，社會民眾對犯罪之觀點，及尋找出生活裡所展現出的道德評斷標準。並以此觀察且得證：古今之間對於道德的判斷不但有承繼，更是均一的，確能由法律規定中反映出此一今古相繼的道德觀。

關鍵字

清稗類鈔 ； 刑法 ； 道德

並列摘要

This research tries to cross the border between law and literature, and take a different perspective from the past to study novels. The sequence of writing is to define and discuss law and morality first, to advance it rationally, and then to narrow the scope one by one. Finally the scope will be bounded to the criminal law. It will determine and provide that the criminal law can be applied to the original purpose of this research. Since the Literary sketches have the values from the historical data, this research uses the way of returning to the original text, reading in detail and recording each case which is collected and described in these two categories, and then analyzing the 217 cases one by one in both ＂Chapter Prison and Lawsuit and Chapter Prison and Lawsuit II, Qing Petty Matters Anthology＂. The research will also organize every action of each character in each case, and find out the consequences. After such analysis, all results have to be inducted and classified. From the cases which are collected and described in the two chapters, expectedly the public's point of view on crimes in the Qing Dynasty can be clarified from the large to the small range, from the far to the near. Then, try to figure out the standard of moral judgments in daily life. After paralleling and comparing with modern times, the two chapters will be inspected and examined by the current criminal law. Expectedly we can identify and prove that the judgments of morality both in ancient and modern times are not only inherited but also identical. The moral concept which is carried forward from the ancient to the modern indeed can be reflected from the legal provisions.

並列關鍵字

＂Qing Petty Matters Anthology＂ ； the Criminal Law ； morality