中国传统复仇制度与现代法治的矛盾与平衡 - 以张扣扣复仇杀人案为引入 -

Abstract

The Chinese traditional humanity, justice and morality are very important to Li-Fa system and still have great influence on today’s society. In modern legal system, there are some circumstances that some legal regulations or judicial practice seriously conflicts with traditional morality, the recently well-known case of Zhang Koukou is a typical case. This paper takes Zhang Koukou case as an example, aiming at Chinese traditional concept of revenge and its system and rule to explore the contradiction arising from tradition revenge system and the present-day rule of law. The Chinese traditional revenge system was strongly supported by Confucianism and it was composed of Confucian classics regulations and legal rules and had a set of specific and tedious regulations to make the revenge reasonable. Confucian classics established the tradition concept of revenge, which restricted the premise, the target, and the subject of the revenge and required the revenge result should be life for life. Separating from the Confucian classics, the legal rules and regulations relating to revenge were gradually formed. The law of the country was generally in a status to prohibit the revenge, but under the domination of Confucian concept of revenge the specific case must be balanced, and the revenge became a conflict between Li and Fa. In relation to traditional concept of revenge, the divorce system of “Yi Jue”, the rule that “if one murdered a people, once he was pardoned, he should move to another place”, the prohibition of private settlement on murder case, the regulations of restriction of revenge disposition, were all in the legal system belonged to preventive and compromised system regulations. The Chinese traditional revenge conflicts with the modern rule of law, the legal concept of revenge punishment and retribution theory are reexamined in the theory of modern criminal law theory, the strong emotions of revenge are controlled by the absolute restriction conducted by law to revenge, which can be attributed to the conflict between the traditional rule of man and the modern rule of law. All these conflicts between traditional revenge and modern rule of law are the problems from historical evolution and the transformation from ancient to modern, it should be balanced. Firstly, it should balance the law and the morals, in the legislation, the revenge conducted by relatives and the common assault and murder behavior should be distinguished, judicially the revenge circumstances should be given the corresponding consideration, and the attention should be paid to specific case that its judgment could resolve the hatred and achieve the justice. Secondly, it should balance the revenge and forgiveness, the design of system should give response to the rationality of revenge behavior, to comprehensively use the proper way to maximize the compensation to the family of the victim for the hurt they suffered so that to reduce the revenge cases. The reasonable and justice legal regulations and the forgiveness to the hatred should be established, the legal education should be promoted and the forgiveness of the masses should be trained, which would lead one to actively pursue lawful and reasonable way to solve problem if the rights and interests of his relatives were harmed. Lastly, the common code of conduct should be established to relieve the intense and estranged state between the public authority and the masses, by the way of leading the masses, moving towards the masses, the organizations of public security, the procuratorate and the court forwardly pushing forward, the communication bridge connecting the public authority and the masses can be built. Face our Chinese special problems and make use of our local resources, the obstruction coming from traditional revenge system can be converted helpful in the process of rule of law, which will make country’s great tradition in harmony with folk little tradition and provide reference for the possible similar revenge problems in the future. The prospect of the modern rule of law and the traditional culture mutually reflect each other will be expected.