中国古代“谋杀”概念的形成与演变

秦汉时期并没有出现对谋杀的准确定义。根据西晋张斐的解释,谋杀是二人以上共同故意杀人、是一种必要共犯。根据唐律的解释,谋杀不再是必要共犯,谋杀也可以是单独犯罪。但是,在唐代,谋杀与另外一种重要的杀人类型故杀并没有明确的界限,因此,谋杀的概念并不明确。明清时期,谋杀在概念上与故杀区分开来、从而谋杀这一概念本身也得到了明确的界定。     

唐律中误杀、戏杀、过失杀考析

唐代虽然没有现代意义上的犯罪构成理论,但唐律已经注意到把犯罪行为与主观相结合。唐律中将杀人犯罪划分为六种类型：谋杀、故杀、斗杀、误杀、戏杀、过失杀。对于误杀、戏杀、过失杀的定罪量刑不仅考虑其主观心态,还要根据其犯罪性质的轻重、犯罪的结果和犯罪的危害性等进行综合的评价。唐律的这些规定对后世也产生深远的影响。     

故杀重判略析——以《唐律疏议》为中心

在《唐律》中,谋杀与故杀是两种既有紧密联系,也有深层差异的杀人罪名。与现代法律重谋杀轻故杀不同,唐代对故杀的科刑要比谋杀为重,其根源在于古人对犯罪恶性的特定思维模式。由于《唐律》没有直接言明对故杀、谋杀量刑差别的依据,使得明、清以至近现代的一些法制史学者对故杀在《唐律》中的地位出现了认识上的偏差。本文之写作目的即在于纠正这种偏差,为唐代法制的研究排除一点障碍。     

唐律“斗杀”考

唐律"斗杀"可概括为因斗、殴之事而杀人,"斗"与"殴"为伤害行为前后相续的两个阶段。唐律在"斗杀"的时机条件、犯罪工具的使用、客观环境的判断方面皆有具体规定。"斗杀"之罪过形式,可概括为间接故意。唐代传世文献中,少有涉及"斗杀"案件的记载,但宋代史料在"斗杀"立法与司法方面有所记述。通过文献记载可知,"斗杀"在性质上为一类重罪,常赦所不原;但法律实践中"斗杀"与相近犯罪的区分往往产生困难。     

析故意杀人罪中的从重与从轻情节

研究故意杀人罪的情节,对于正确适用刑罚,准确地打击这种犯罪活动,更好地贯彻依法从重从快的方针是十分必要的。旧中国和一些外国刑法都把故意杀人罪细分为多种犯罪,并分别规定了相应的法定刑。我国封建社会的法律,如唐律等,将故意杀人罪区分为谋杀、故杀、斗杀、殴杀、戏杀、误杀等,并根据犯罪者和被害人的尊卑贵贱身份以及杀人的方法不同,分别作了不同的规定。国民党政府的刑法,则把故意杀人罪分为普通杀人罪、杀直系血亲尊亲属罪、义愤杀人罪、母杀甫生子女罪、加功自杀罪等等。一     

唐律误杀考

唐律中的误杀指行为人因其主观认识与客观情况不符而造成他人死亡的行为。误作为一种非故意而予以宽宥的形态在唐以前已非常固定,在唐代及后世文献的记载中没有实质变化。《唐律疏议》中误共出现190次,涉及到46条律文,其含义均涉及行为人的主观心态及责任形式。唐律中的误杀可分为起因于劫囚、窃囚、盗、斗殴、谋杀,以及疏忽大意所致的误杀六类。全面解析律文所列的具体误杀行为与刑罚的对应关系是研究唐律误杀的关键。     

唐律疏议:中国现存第一部完整法典

《唐律疏议》,是后人给与唐永徽年间开始修撰的《永徽律》及其《律疏》的名称.唐代是中国古代法发展的成熟期.仅此一朝制定了多部法典,据《旧唐书·刑法志》的记载,先后颁布有《武德律》《、贞观律》《、永徽律》及其《律疏》《、开元律》及其《律疏》等.此外还有其他多种法律形式.其中《永徽律》及其《律疏》是唯一现存的唐律.     

从唐代姚文秀杀妻案看我国古代故杀人罪的罪名定义

《文献通考》卷一百七十载有一则唐代姚文秀杀妻案的断例。研究这则断例,有助于对我国古代刑法中故杀人罪罪名定义的了解。唐穆宗长庆二年(公元822年),京师地方有个名叫姚文秀的人,毒打其妻致死。事发到官,按照当时的司法管辖制度规定,由大理寺审理此案。姚文秀自供是由于夫妻相争,斗殴致死。但检验姚文秀身上,毫无伤损。大理寺长官断此案时,根据《律疏》(即《唐律疏议》)卷二十一“斗殴杀人”条中对故杀人罪所下的定义:“非因斗争,无事而杀,是名故     

唐律“夜无故入人家”条源流考

我国古代律典中关于“夜无故入人家”条最早的明文规定始于唐律，但其渊源可追溯至西周。唐律中的“夜无故入人家”条的含义与其渊源条款相比发生了较大的变化。较之唐律，明清律对夜间进入者的处罚加重，而对主人杀死夜间进入者的处罚减轻。清代附在条文下的条例进一步认可了主家以及邻佑等人对夜间入室窃盗之外的其他窃盗行为进行正当防卫的合法性。在《大清新刑律》中，近代正当防卫制度确立，同时侵入住宅的时间也不再区分黑夜与白昼。至此，自唐代以来传统律典中的“夜无故入人家”条被取消。     

唐律的共盗犯罪

唐律的共盗犯罪,由于主体的和行为的不同而存在极为复杂的共盗情形.在立法上,作为总则的《名例律》中有一般性规定,作为分则的《贼盗律》中又作进一步的一般性规定,然后还有盗罪具体情形的专门性规定,由此形成唐律交叉重合的复杂共盗关系,决定影响着性质的认定、法律的适用和处罚的轻重.唐律对于共盗犯罪的处置,体现了唐律立法成熟细密的高超水平,对于后世明清盗罪立法影响很大,对于现代立法和法律的实际适用也具有重要参考价值.     

“命案必破”的逻辑解析

“命案必破”是一个规范命题,承诺命题,同时又是一个必然模态命题。“命案必破”之因,产生了公安工作发展之果;公安工作发展之果又不断促进“命案必破”目标的实现;“命案必破”目标的不断实现必然促进社会治安秩序的稳定;社会治安秩序的稳定又为构建社会主义和谐社会提供强有力的保障。因此,无论从逻辑上对命题本身的解读,还是对命题与实践结果的因果分析,都可以得出一个结论,“命案必破”命题的提出不但是科学的,而且具有十分积极的社会意义。     

The future of homicide offenders. Results from a homicide project in Copenhagen

As a part of a Copenhagen homicide project, 52 released homicide offenders were followed during a mean period of 9 years. Pessimistic expectations were confirmed as post-release rates of criminality, psychiatric admission, and suicide were all very high. By logistic regression analyses, young age by release, and long stay in prison were found to increase the risk of further criminality, and previous psychiatric admission was found predictive of future admission. The problems in using logistic regression analysis on variables--all of whom may be viewed as "parallel" indicators of a common tendency to adverse behaviors--are discussed. In conclusion, the results have been used for a tentative division of homicide according to the offender-victim relationship into intra-family homicide and extra-family homicide. In intra-family homicide the most important dimension seems to be the psychic state of the offender, in extra-family homicide more impact should be attributed to the social dimension.     

Newborn kidnapping by cesarean section

A study of 30 cases of violence from a total sample of 199 cases of infant abductions between the years 1983 and 2000 included a subsample of six (or 20%) where the kidnapping was by cesarean section. The six cases are classified by type of crime. Four cases were classified as personal cause homicide, subtype cesarean section homicide; one case classified as personal cause, subtype domestic homicide, and one case classified as a criminal enterprise homicide. The behavioral profiles of the abductors included a confidence style approach to the victim mother, deception, and planning of the cesarean section. The forensic psychodynamics suggest a dual motive to cement a failing partner relationship and to fulfill a childbearing and delivery fantasy. Cesarean section murder suggests a new category of personal cause homicide.     

Reducing homicide: A review of the possibilities

This paper explores the potential for reducing homicide, with a particular focus on the United Kingdom. It draws upon data from the Homicide Index, international research on homicide, and the general crime reduction literature. Homicide is highly diverse in its characteristics, causes and dynamics, so effective strategies to reduce it are likely to require tailoring to specific forms. The paper focuses upon four important categories: domestic (partner) homicide; the killing of infants; alcohol-related homicide; and homicide involving guns and knives. Attention is also paid briefly to issues around dangerous offenders and mental disorder, and to homicide victimisation in relation to specific occupations.This paper was written in 2001 and accepted for publication by Crime Law and Social Change in 2002. Some minor updating has been undertaken by the authors, but due to the delay some sections will inevitably not refer to the most recent research. An earlier version of the paper was published online by the Home Office in 2003.     

HOMICIDE AGAINST THE ELDERLY: A RESEARCH NOTE*

By virtue of the type of data generally used (victim surveys), previous research on the victimization of the elderly is limited in two respects. Not only is the crime of homicide outside the domain of victimization data, but sample surveys uncover too few incidents of victimization of the elderly to permit in-depth analyses. Using the supplementary homicide reports from 1976–1985, we compared patterns and rates of homicide among the elderly and younger populations. Our results suggest that the elderly are in fact the least at risk for homicide generally, as has been reported for other crimes. When examining specific subtypes of homicide, however, the elderly are actually at greater risk than their younger counterparts for homicide committed during a robbery.     

Newspaper Structuring of Crime Views: Images of Homicide In Cali,Colombia

The research reported in this paper was supported in part by the Andrew Mellon Foundation, the American Philosophical Society, and Tulane University's Center for Latin American Studies. The author gratefully acknowledges the assistance of Gloria Lessan, Cecilia Camacho H., and Fany Ackerman at various stages of this investigation.

Though there is considerable consensus that newspapers distort the crime picture, there is little agreement that the papers structure public ideas about crime. In an effort to investigate that possibility free of the complications created by intervening variables, the present research investigates the influence of Cali, Colombia's major newspaper's presentation of homicide news upon Cali citizens' ideas about that type of crime. Media-related intervening variables are controlled because Cali has no local television stations and because crime news, focusing on homicide, is reported in the same quantity, fashion, and location in the daily newspaper. A sample of Cali residents was surveyed to ascertain whether or not their views of certain homicide characteristics coincided with the image presented by the newspaper. Victimization patterns were found not to influence public ideas about homicide. Public views, in the main, were found related to newspaper coverage of homicide. It is suggested that newspaper reporting, while one of several potential influences on public opinion, should not be considered inconsequential in structuring public ideas about crime. The implications of this finding for future research are examined.     

Assessing the interaction between offender and victim criminal lifestyles & homicide type

Purpose

This study examined the interaction between homicide victim and offender criminal lifestyles and the situational characteristics of homicides that occurred in the city of Newark, New Jersey from 1997 through 2007. Three research questions were explored: (1) what are the lifestyles exhibited by homicide victims and offenders; (2) are there different types of homicide actors (i.e., victim and/or offender) based on their criminal lifestyle; (3) do varying homicide actor (i.e., victim and/or offender) types influence the characteristics of homicide incidents?

Methods

Five hundred and thirteen homicide incidents was used to answer the three research questions. Hierarchical Agglomerative Cluster and Logistic Regression Analyses were employed to answer the research questions.

Findings

The findings showed that criminal lifestyles were indeed very common among homicide victims and offenders, and that they resemble each other. The findings also showed that there were two types of homicide victims and offenders, and that these types influenced the etiology of homicide incidents.

Conclusion

Overall, the results suggest that researchers and practitioners should take into account the criminal lifestyles of potential victims and offenders when tailoring homicide prevention strategies.     

A case of strangulation with postmortem amputation of the penis

A case of homicide with postmortem amputation of the penis was described. The penis found later in a home freezer in the apartment of the culprit showed "zigsaw" fit to the victim. In order to substantiate the morphological findings, phenotypes of three isozymes, phosphoglucomutase1 (PGM1), phosphogluconate dehydrogenase (PGD), and esterase D (EsD) together with ABO blood type were determined in the skin of the penis amputated. All of the four genetic markers determined with the penis were the same as those determined with heart blood of the victim.     

Verdict selection processes in insanity cases

Judicial instructions (traditional American Law Institute vs. Guilty But Mentally Ill [GBMI]) were manipulated within an insanity defense vignette portraying a highly psychotic defendant. Construals were highly predictive of verdicts in both instructional conditions. Instead of influencing case construals, the GBMI option seems to operate by increasing respondents' decisional thresholds for insanity and guilty verdicts, creating a collapsing effect such that few such verdicts are rendered. Between-instruction comparisons reveal that the construals of respondents who choose insane and guilty verdicts are considerably more homogeneous and extreme under the GBMI conditions. Results suggest that many respondents intend their GMBI verdicts to signify diminished blame and punishment, indicating that such verdicts entail cognitive compromises that reflect both the thresholdraising effects and also probable confusion about the jurisprudential meaning of a GBMI verdict.This article is an expanded version of a paper entitled Insanity case construals are not simply verdict justification effects, which was presented at the 99th annual convention of the American Psychological Association at San Francisco, August, 1991. We would like to thank Linda Roberts, Norman Finkel, and the anonymous reviewers for their comments on an earlier version of this paper. Support for this research was provided in part by a grant from the Baldy Center on Law and Social Policy at the State University of New York at Buffalo.