唐律“夜无故入人家”条源流考
闵冬芳唐律“夜无故入人家”条源流考
“Intruding an Individual’s Dwelling House without Proper Reason”Item：Its Originand Development in Tang Code
期刊名称：《法学研究》
期刊年份：
作者：闵冬芳
单位：中国政法大学博士后流动站
中文关键词：夜无故入人家;正当防卫;唐律;明清律学
英文关键词：intruding an individual’s dwelling house without any proper reason;legitimate self-defense;the Tang Code;the Ming and Qing Codes
中文摘要：
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。
英文摘要：
There was actually no such a general stipulation in regard to legitimate self-defense in ancient Chinese law. However, there were indeed some concrete stipulations concerning legitimate defense against some infringement. One of the most representative items since the Tang Code was the item of “intruding an individual’s dwelling house without any proper reason”.Actually, this item could be traced back to West Zhou. According to the Tang Code, any intruder intruding into an individual’s dwelling house at night, the punishment was 40 blows with light stick. If the host killed the intruder the moment he intruded the dwelling house, the host could be exempt from criminal charge. There are three important variations in this item in the Tang Code compared with the original items. Firstly, the intruding should occur at night. Secondly, the place intruded into was restricted to the dwelling house. Thirdly, the host can only kill the intruder without criminal charge the very moment the intrusion occurred.Compared with the Tang Code, the item specified by the Ming and Qing Codes displayed important differences. Simply put, the punishment of intrusion was getting more severe, and the punishment of the host for injuring or killing the intruder already held was getting less severe. It merits a mention that the Ming Code did not even stipulate the situation of “awareness of non-intentional infringement” as the Tang Code had. In the New Great Qing Penal Code, the legitimate self-defense system was validated formally and the punishment for intruding into an individual’s dwelling house was not specifically restricted to the night any more. Thereafter, the item specified by the Tang Code ceased to exist.
全文阅读： 点击下载
