秦汉律中的职务犯罪——以“公罪”为考察对象

严格维护国家权力的有效性与畅通性,惩治国家权力行使者的各种违法、违制行为,无疑是中国古代法律的重要功能之一。公罪的产生,渊源于春秋战国以来集权观念的强化与官僚政治体系的严密。公罪的主要功用,即在于对官吏的职务犯罪加以性质区分,以适用不同的处罚。在秦汉律中,虽未见公罪之名,但公罪之实已具形态,其构成要件、罪过形态的区分、责任连带等都与后世律有一定的关联。犯罪公私的区分,使公罪作为类概念而适用于官吏非出于私利的失职、违制等犯罪行为,因此包容性甚广。其入于《名例》,正在于为官吏职务犯罪的繁杂性提供一个定性标准。

Official Occupational Crime in Law of the Qin-Han Period-- in the perspective of public crime

One of the most important functions of the Chinese ancient law was to strictly maintain the effective- ness and unimpeded usage of the state power, punishing all kinds of illegal acts and violations. Public crime derived from the strengthening centralization and increasingly sophisticated bureaucractic politics during the Spring and Au- tumn Period. The main function of Public crime was to distinguish different official occupational crime in nature, in order to impose different punishments. In the law （Lv） of the Qin-Han Period, though the name of the public crime didn＇ t appear, substantially public crime had developed a prototype. Its Tatbestand of the crime, the distinction of the criminal patterns, the joint liability all had relations to the later laws. The distinction between the public crime and private crime made the former become a class concept, which was inclusive, applying to the official＇ s dereliction of duty and violation not for private wish. It was stipulated in the General Provisions （ Mingli ） of the Code of the Tang Dynasty ,which provided a qualitative standard for the complicated officials＇ occupational crime.