An Analysis Of The Nonfeasance Crime In The Law Of The Tang Dynasty

Nonfeasance crime is the new concept which the modern penology theory proposed, "Tang Lv Shu Yi" although already had the massive related the nonfeasance crime aspect legal rule, but had not proposed explicitly in the legislation. Therefore this article borrows the concept of the nonfeasance crime and the crime from the modern penology theory, to elaborate the "Tang Lv Shu Yi" related nonfeasance crime aspect legal rule.The first part carries on the summary analysis to the nonfeasance crime of Qin han code. The reason that has only one in mind to the Qin han code's Nonfeasance crime, on the one hand as a result of Tang Lv and Qin han code important history origin. Just so-called:"The law of Tang Dynasty embraces accomplishment of the Qin Han and Wei jin Dynasty legal code, gets down holds beginning of the Song Yuan and Ming Qing Dynasty clear law". On the other hand, the law of Qin han Dynasty code stipulated the nonfeasance crime also most has the representation.The second part: Through reading and earnest analysis of "Tang Lv Shu YI", I induce nonfeasance crime into nonfeasance crime related with the political, nonfeasance crime related with ethics morals, nonfeasance crime related with economical and nonfeasance crime related with military four broad headings in the Tang Lv legal rule. 1st, I divides the political aspect of nonfeasance crime into with highest ruler emperor who represents the feudalism political power related and with the feudalism political power performer official's related. After summary discovery, with emperor related nonfeasance crime, mostly concentrates in the daily life of emperor, like the diet, the medicine, rides in a carriage, boat ship aspects and so on. But official nonfeasance crime involves infringement feudalism political power for core plots a rebellion, the sacrificial offering, the imperial civil service examination test, to select the talented person, the administrative law enforcement, the judicial lawsuit, the jail and so on. 2nd, in ethics morals aspect's nonfeasance crime, the law of Tang Dynasty is seeping the Confucian law thought from beginning to end. Therefore manifests father right patriarchal system, treatment of women as inferiors, voluntary standard and so on Confucian thought's nonfeasance crimes also greatly to have considerable, including unfilial, righteousness, the marriage, to see the danger not to rescue, to see the danger not to consider and so on. Because the law statute book of Tang"the criminal law and the civil law not to divide""various method synthesis", in the moral aspect this application civil law adjustment's behavior, also induces into the nonfeasance crime. For example invades the belongings behavior, the debt not to recompense and so on. 3rd, economic aspect, as early as when prosperous times, the Tang Dynasty ruler realizes the economical importance, but as a result China feudal economy level of development's limit at that time, stressed agriculture but damped business'to occupy the dominant position. Nonfeasance crime's legislation in the economic aspect mainly has to guarantee the feudal economy important means that are the lateral economic ties and the pay in labor system, but also has the relations agricultural production surveillance aspect and the infrastructural facilities aspect as well as at the beginning of the dew seed relates the market commercial trade aspect . 4th, in the military aspect, although the Tang Dynasty just when the piping time of peace, but actually does not idle in the military aspect, this point then can be inferred in the related military aspect's legislation.The third part: Through the law of Tang dynasty nonfeasance crime's classification analysis, this article summarized the nonfeasance crime characteristic, certainly some characteristics are also the Tang law standard own have. The prominent characteristic has four aspects: First, legal extensive moral; Second, voluntary main body diversification; Third, bright emperor mainly treats the government official incurable people's tradition; Fourth, legislative technology excellent. After the analysis thought that the legal extensive moral reason have two: Its one of the Tang law with the Confucian thought's"one shouts the ritual"is inseparable, sees the danger to help one another, readies to help others for a just cause for the Confucian traditional virtue; Second, our country traditional culture has stressed the society selfish departmentalism, the imbalance duty, causes the law unable to be separated from the morals, but is independent. Behaves righteously, sees the danger to help one another has been Chinese nation's traditional virtue, but whether the moral duty rises to the legal obligations, whether namely does the moral duty become the Nonfeasance crime's the origin of making the position duty is also the topic which the present criminal law educational world discusses. In voluntary main body aspect, the reason that said its diversification, mainly proves from the official subject of crime and the ordinary subject of crime. In the massive royal government official crime, the subject of crime not only includes official, in the company, the village just and the work place and so on autonomous organization's people in charge also implicate. But in the ordinary main body crime, the subject of crime not only includes myself, but also implicates including other people, neighbor as well as native place stipulation. But proposes"clearly mainly treats the government official incurable people"the thought by Han Fei zi in the Tang Dynasty still to perform to use, moreover the ruler realized the official"nonfeasance"the crime and the official profoundly"the chaotic achievement"has the similarly formidable hazardous nature, therefore had stipulated the massive officials nonfeasance crime, involved the administration, the judicature, the military even civil aspects. This article has also analyzed national and government official's relations, as well as why governs the government official incurable people, how to govern the government official, namely the biography which using Han Fei zi's law, the potential, the technique three unifies rules the government official method.But most lets be called the road also to be the Tang law legislation technology maturation, the legislator not only already has careful noted the nonfeasance crime subjective aspect, has differentiated intentionally and the error subjective psychology, but also differentiated the status to violate and the non-status commit, had considered doer's fulfillment ability, in the crime punishment aspect of nonfeasance crime, regarded the plot the weight to punish. I careful conclude these principles to show the legislation technology's excellent and preciseness.The fourth part I classified and induced our country present criminal law stipulated, compared with the ancient and modern nonfeasance crime that takes the voluntary origin.I used the present criminal law theory world cross saying that the duty which the law clearly stipulated; the duty or the service requests duty; the advanced behavior causes duty; the legal act causes duty; adding on the moral duty one kind, altogether five kinds. Finally proposed whether the moral duty can become the nonfeasance crime's the origin of making the position duty this question achievement duty to elaborate. Obtains finally, namely then that does not violate"the responsibility for an offense to be personal"the criminal law principle, does not violate"the legal threshold"this legislative principle, and that has the widespread mass base as well as the feasible moral duty standard to be able the legalization, otherwise will slide to the legislative ethics principle.