从"公室告"与"家罪"看秦律的立法精神

在秦律中,当父家长的侵害对象是家庭中的卑幼时,这种行为属于"家罪"或"非公室告",禁止卑幼控告,但不禁止家庭成员以外的人控告;当父家长的侵害对象超出家庭卑幼的范围时,这种行为就属于"公室告",家庭卑幼也有义务和责任举报,甚至可以将其捉拿归案以免自己受到株连."公室告"与"家罪"的有关规定,源自法家之君权高于父权、官方利益高于家族利益的政治理念,明显带有限制父权的意图,是法家伦理观念和法律思想的体现,并不符合先秦儒家的家国观与忠孝观.

The Spirit of Qin-time Law as Seen in the Stipulations of Gongshigao and Jiazui

According to the Qin-time law, if a father committed a crime against the inferior members of his family such as his sons and daughters or his slaves, which was regarded as non-gongshigao or jiazui, the inferior members including the victims were forbidden to accuse the father; but if a father committed a crime against a person who was not a inferior member of the family or even was a person beyond the member of the family, which was regarded as gongshigao, under an obligation, the inferior members may report the crime and even may seize and send their guilty father to the authorities to avoid being involved in the case. Such stipulations were based on the political ideal of Legalists who emphasized that regality must be superior to fatherhood and the interest of government must be superior to that of family, which is different to the ideal of Confucianists.