CAJ | 학술논문

准五服以制罪虽然将儒家礼教的条文纳入法律之中，但与儒家礼教精神却是相背离的。儒家礼教的精神、合乎社会实际的家族伦理以及法律应有的公平正义在准五服以制罪的实践中被严重扭曲。准五服以制罪的表层原因是为了维护与君权相通的父权，深层原因则是迫使家族承担自我约束与管理的责任，从而有利于中央集权君主专制的社会秩序。
준오복이제죄수연장유가례교적조문납입법률지중，단여유가례교정신각시상배리적。유가례교적정신、합호사회실제적가족윤리이급법률응유적공평정의재준오복이제죄적실천중피엄중뉴곡。준오복이제죄적표층원인시위료유호여군권상통적부권，심층원인칙시박사가족승담자아약속여관리적책임，종이유리우중앙집권군주전제적사회질서。
The principle of convicting on the basis of the Mourning System was first established in the law of the West Jin Dynasty, and has been retained in and improved by various laws of subsequent dynasties. Although this principle incorporates some Confucian provisions into the law, it nonetheless runs counter to the spirit of Confucianism. To be specific, Convicting on the basis of the Mourning System violates the principle of Confucianism that people＇s behavior should be guided by morality and etiquette. In this sense, the Mourning System challenges the fundamental position of Confucianism regarding the relationship between etiquette and justice, and its one-sided emphasis on the obligation of juniors to seniors is inconsistent with the Confucian family ethics. The spirit of Confucianism and its family ethics in line with social reality, as well as the fairness and justice of law, are seriously distorted by the application of the principle of convicting on the basis of the Mourning System. The apparent reason for applying the principle of convicting on the basis of the Mourning System is to maintain the patriarchal power associated with monarchial power, since absolute monarchial power requires absolute patriarchal power. The underlying reason, however, is to force the family to bear the responsibility of self-restraint and self-management, which is beneficial for the social order of a monarchy with centralized power.