准五服以制罪是对儒家礼教精神的背离  

作　　者：屈永华[1] 

机构地区：[1]中南财经政法大学法学院

出　　处：《法学研究》2012年第5期191-197,共7页Chinese Journal of Law

基　　金：中央高校基本科研业务费专项资金项目"中西法律现代化的历史与文化比较"的阶段成果;项目编号:2011002

摘　　要：准五服以制罪虽然将儒家礼教的条文纳入法律之中,但与儒家礼教精神却是相背离的。儒家礼教的精神、合乎社会实际的家族伦理以及法律应有的公平正义在准五服以制罪的实践中被严重扭曲。准五服以制罪的表层原因是为了维护与君权相通的父权,深层原因则是迫使家族承担自我约束与管理的责任,从而有利于中央集权君主专制的社会秩序。The principle of convicting on the basis of the Mourning System was first established in the law of the West Jin Dynasty, and has been retained in and improved by various laws of subsequent dynasties. Although this principle incorporates some Confucian provisions into the law, it nonetheless runs counter to the spirit of Confucianism. To be specific, Convicting on the basis of the Mourning System violates the principle of Confucianism that people＇s behavior should be guided by morality and etiquette. In this sense, the Mourning System challenges the fundamental position of Confucianism regarding the relationship between etiquette and justice, and its one-sided emphasis on the obligation of juniors to seniors is inconsistent with the Confucian family ethics. The spirit of Confucianism and its family ethics in line with social reality, as well as the fairness and justice of law, are seriously distorted by the application of the principle of convicting on the basis of the Mourning System. The apparent reason for applying the principle of convicting on the basis of the Mourning System is to maintain the patriarchal power associated with monarchial power, since absolute monarchial power requires absolute patriarchal power. The underlying reason, however, is to force the family to bear the responsibility of self-restraint and self-management, which is beneficial for the social order of a monarchy with centralized power.

关 键 词：准五服以制罪 儒家礼教 服丧礼仪 

分 类 号：D929[政治法律—法学]