摘要
對中國歷代律典在〈名例〉篇中「親屬容隱」規定的真實所指和制度含義，從詞義、律文分析、歷史變革等角度著眼，本文認為：「隱」和「容隱」字詞在不同文獻中有不同含義，歷代律典中「容隱」一詞用法有變化，雖都隱含「庇護」之意，但不同情形下具體各指「不告」或「藏匿」，「同居相為隱」之「容隱」，實指藏匿；律之「同居相為隱」條針對藏匿罪人、偷報消息等犯罪事發後協助罪犯逃避官府制裁的行為，與告發等無關；「親屬容隱」規定的確立，乃是舍匿罪人之罪的例外，是親情入律的表現；唐律及明清律例之間，該規定已有所改變，應慎引明清材料以證「容隱」規定的整體發展。圍繞「容隱」主題，本文並試圖發現目前觀點的由來及其在方法和眼光上的不足。
The comprehensive aspects of the article of Allowing Concealing Relatives in the first chapter Names and Applications of Punishments of all extant ancient Chinese codes have been put forward. By analyzing on the meaning of the word concealment, and those related articles to this provision and historical changes, this monograph gets its own conclusion that to conceal has different meanings in different texts and its usage had been changed in those codes. Though it implicates to shield, it is necessary to distinguish its accurate meaning, namely, to hide or not to accuse, according to different circumstances, and it means to hide in the article of Allowing Concealing Relatives; that the provision of Allowing Concealing Relatives is aimed at such crimes to assisting the criminals whose commissions have been known by authorities in escaping from punishments, as hiding criminals, informing them that authorities are searching for them, etc., with no relation to not accusing; that the article of Allowing Concealing Relatives is a provision reflecting the impacts of relationships in family upon the law, conferring persons in certain circumstances the privilege of hiding criminals, which is a crime itself; that with overall changes of the codes, this provision also changes. Changes in Ming and Qing’s laws compared with those in dynasties before these two should be paid much attention to, and it is wise to use the evidences of Ming and Qing with caution to demonstrate the whole development of this provision. Upon this topic, this monograph has a further intention to track out the origins of the dominative arguments objected to by this monograph, and to point out their defects in both aspects of the methods and the perspectives.
關鍵詞
容隱、系統容隱說、不告不證說、藏匿、告
concealment; Argument of Concealing System; Argument of Not Accusing or Testifying; Hiding; Accusing