“具五刑”考——兼证汉文帝易刑之前存在两个“五刑”系统

发布时间：2018-03-29 11:25

本文选题：夷三族之令　切入点：具五刑　出处：《中国史研究》2014年02期

【摘要】："具五刑"之"五"不得其解,皆由句读而起。重新断句,并结合相关史料可知,《汉书·刑法志》所记载的"具五刑"指的是"黥,劓,斩左止,斩右止,笞"五种刑罚,其中"笞"为替代刑。这与张家山汉简《二年律令·具律》"刑尽者,皆笞百"以及"有罪当黥,故黥者劓之,故劓者斩左止,斩左止者斩右止,斩右止者府之"密切相关。明确"具五刑"之所指,有助于解答《史》、《汉》相关记载的疑难问题,并可进一步推定文帝肉刑改革之前存有两个"五刑"系统,以及"秋冬行刑"原则似乎秦朝已遵循等问题。
[Abstract]:The "five sentences" with "five penalties" cannot be understood, they all start from the sentence reading. We can see from the relevant historical data that the "five penalties" recorded in the Criminal Law Journal of the Han Dynasty refer to five kinds of punishments: "tattooing, chopping left, chopping left, chopping right, and lashing". Among them, "caning" is a substitute for punishment. This is in line with Zhang Jiashan's Han Bamboo slips, "all who have been punished, all who have been punished," and "those who are guilty of being tattooed, so those who have tattooed have left and those who have left and those who have left cut to the right." A clear definition of "five punishments" will help to solve the difficult problems recorded in the relevant records of "History" and "Han", and it can be further presumed that there were two "five penalties" systems before the reform of Wen Di's corporal punishment. And the principle of execution in autumn and winter seems to have been followed by Qin Dynasty.
【作者单位】：湖南大学岳麓书院;
【分类号】：D929;K234.1

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