唐代刑法之首恶及其认定的影响因素

中国古代刑法之共同犯罪到唐代规定已相当具体，不仅将首恶与“随从”或“协同”者、“被逼”或“被驱率者”、教令者相区别，而且还依据共同犯罪中的不同地位、不同作用区别量刑。但是，法律离不开社会的土壤，在皇权专制的社会里，法律也被刻上了等级与宗法的标签。在唐代刑法中，影响首恶的认定因素不仅是主观罪过和客观行为的严重程度，还包括血缘关系和职务身份以及犯罪性质。

The Affirmation and Its Restraining Factors of the Chief Criminal of Penal law in Tang Dynasty

The joint offence in Chinese ancient criminal law was specifically defined in the Tang Dynasty. The chief criminal was distinguished from attendants or cooperative persons or persons being forced or instigators,but also made sentence according to different position and role in crime. However,the law could not do without the social soil,thus laws were also engraved with the hierarchy and the patriarchal clan system in the autocratic society. So,in criminal law of the Tang Dynasty,factors affecting the identification of master-slave relations included the severity of the subjective and objective behaviors as well as blood relations,social identity and the nature of the crime.