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文章认为子孙违犯教令作为清律一个独立的罪名,其量刑分为两种:其一是:“凡子孙违犯祖父母、父母教令,及奉养有缺者,杖一百”。此类型是子孙单纯的违犯教令,能为而不为,或者在赡养侍奉祖父母、父母方面有所欠缺,其法定刑也较轻。其二是在子孙违犯教令的基础上,增加了加重情形以及祖父母、父母的送惩权。《大清律例》增加了三种条例,将子孙的犯罪行为致祖父母、父母死亡的情形含括在内,而不仅限于违犯教令这一项行为,同时量刑幅度也因子孙是否犯奸盗罪以及祖父母、父母在其实施犯罪行为前后所持有的主观态度的不同而发生变化。最后提出,审判机关在法无明文规定的情形下,如何在个案中追求定罪量刑的公正,对现代中国刑法具有深远的意义。
The article holds that the offspring who violated the ordinance as an independent charge of Qing law have two kinds of sentencing: one is: “Everyone who violates grandparents, parents’ orders, and imposes a shortage of one hundred.” This type is a simple violation of religious orders, not for, or in the maintenance of service grandparents, parents lack, its legal punishment is also lighter. The second one is that on the basis of the violation of the edict by the children and grandchildren, the cases of aggravating circumstances and the sending and punishing powers of grandparents and parents are added. The Qing Rules added three kinds of regulations to include the offenses of grandchildren and grandchildren in case of grandparents and their parents, not only in violation of the ordinance but also in the range of sentencing rates because of offenders As well as the differences in the subjective attitudes of grandparents and parents before and after committing crimes. Finally, it is proposed that how to pursue the fairness of sentencing and sentencing in individual cases under the condition that there is no express law in the judicial organs has far-reaching significance to modern Chinese criminal law.