中国古代罚赎制度考辨

发布时间：2018-10-16 20:29

【摘要】：直接刑是直接适用的刑罚,与犯罪事实构成直接对应的关系,替代刑则是对本应处以刑罚的替代,与犯罪事实之间的关系是间接的,二者是对立概念。本应处以的刑罚称为本刑,有替代刑即有本刑,二者是伴生概念。常刑是可以直接适用的刑罚,既可能作为直接刑,也可能作为替代刑。对直接刑还是替代刑的判断,需要在具体法律规范中予以确定,即以直接适用的现实性为标准；判断常刑与否,则以直接适用的可能性为标准。替代刑作为制度的成立,需要相对确定的本刑系统,替代刑和本刑要有置换的关系,并且替代刑不能完全取代对应的常刑,同时还要具有非擅断的规范性。直接刑、替代刑与常刑等严谨的法学概念是追溯中国古代罚赎制度源流和判断其在不同历史时期法律性质的必要工具。罚与赎的概念在古代经常存在混用的情形,因此不能望文生义地判断罚赎之别,而要在特定的文本中具体分析。《尚书》吕刑建立了三个刑罚等级以适应司法实践的不同需要,其中的“五罚”是作为直接刑的常刑,并非替代刑；而通过比对文献,可知《尧典》篇的写定年代则当在秦汉之际,“金作赎刑”也非可信的史料,不可作为赎刑的源头。齐桓公“薄刑罚以厚甲兵”的刑罚改革,是对刑制的整体转化,并且由于缺乏形式化的法律,不能成立明确的本刑系统,所以也没有建立替代刑制度。最早的替代刑在睡虎地秦简中才有了明确的证据。秦汉与魏晋南朝的赎有两种不同的情形,在替代刑存在的同时,“赎某刑”这样的固定表达却是常刑的刑名。与罚金一样,“赎某刑”也直接以财产为内容,并且构成一个独立的刑种,在刑罚体系中占有重要的地位。以律文的形式规定替代刑,目前可以考证的是从晋律开始,而替代刑附列主刑则始见于梁代。南北朝时期,律分南北,有所区隔,以元魏律为宗的北律改变了晋律刑制,建立了以新五刑为主刑的刑罚体系,“赎某刑”与罚金乃丧失了作为常刑的资格,赎刑从此只作为替代刑出现。唐律、宋刑统和明律都在名例律的刑名部分以赎刑附于五刑,并在其后的条文中规定其具体的适用,其中明律终明之世未尝更易,并且律学注解甚多,非常适合法教义学的运用。明律赎刑制度考虑到当事人的社会身份、自然属性和犯罪情节；而对于可适用刑罚范围的不同规定则体现出立法者对于犯罪和犯罪人的不同宽大程度；明律赎刑分为全赎和余罪收赎,各有明确的标准和严谨的计算方法；部份赎刑的适用还有消极要件,这些消极要件一般是情节非常严重的犯罪；赎金一般纳入国家财政,而过失杀伤罪的赎金则归属于被害人,起到民事赔偿的作用。
[Abstract]:Direct punishment is a direct applicable penalty, which forms a direct corresponding relationship with the fact of the crime. The substitute penalty is a substitute for the penalty that should be imposed, and the relationship between the penalty and the fact of the crime is indirect, and the two are opposite concepts. The penalty that should be imposed is called the original penalty, and the substitute penalty is the original penalty. The two are concomitant concepts. Ordinary punishment is a kind of penalty that can be applied directly, either as direct punishment or as a substitute punishment. The judgment of direct punishment or substitute punishment needs to be determined in specific legal norms, that is to say, the criterion is the reality of direct application, and the possibility of direct application is the criterion to judge whether the penalty is ordinary or not. As the establishment of the system, the substitute penalty needs a relatively determined system of capital punishment, the substitute penalty and the original punishment should have a replacement relationship, and the substitute punishment can not completely replace the corresponding ordinary punishment, but also has the norm of not being arbitrary at the same time. The rigorous legal concepts of direct punishment, substitute punishment and ordinary punishment are necessary tools to trace back the origin of Chinese ancient penalization system and to judge its legal nature in different historical periods. The concept of punishment and foreclosure is often mixed in ancient times, so we can't judge the difference between punishment and redemption in a meaningful way, but we should analyze it concretely in a specific text. Lu Xing establishes three levels of punishment to meet the different needs of judicial practice. The "five punishments" are the ordinary punishment of direct punishment, not a substitute for punishment, and by comparing the literature, it can be seen that the writing and dating of Yao Dian is not credible historical data, nor can it be used as the source of redeeming punishment in the Qin and Han dynasties. The reform of Qi Huangong's penalty of "thin punishment with thick armour" is the whole transformation of the punishment system, and because of the lack of formal law, it is unable to establish a clear system of original punishment, so it has not established a system of alternative punishment. The earliest alternative punishment in the sleeping tiger Qin bamboo slips had clear evidence. There are two different cases of redeeming in Qin, Han and Wei, Jin and Southern dynasties. At the same time, the fixed expression of "redeem a punishment" is the criminal name of ordinary punishment. Just like fine, "redeem a punishment" also takes the property as the content directly, and constitutes an independent punishment, and occupies the important position in the penalty system. In the form of rule-writing, it can be proved that the substitute punishment begins with the law of Jin Dynasty, and the main punishment with the alternative punishment is first found in Liang Dynasty. In the period of the Southern and Northern dynasties, the law was divided into north and south, and the law of the Yuan Dynasty changed the system of law punishment of Jin Dynasty, and established the penalty system of taking the new five punishments as the main punishment, so that the punishment of redeeming a certain penalty and the fine was disqualified as a regular penalty. Foreclosure only appeared as a substitute from now on. In Tang Dynasty, Song Dynasty and Ming Dynasty, they were appended to the five punishments by the punishment name of the Ming Law, and the specific application was stipulated in the subsequent articles, in which the Ming Dynasty and the Ming Dynasty were not much easier, and there were many notes on the law. Very suitable for the application of the doctrine of law. The legal commutation system takes into account the social identity of the parties, natural attributes and the circumstances of the crime, while the different provisions on the applicable range of penalties reflect the different leniency of the legislator for the crime and the offender. The law of redemption is divided into total foreclosure and redemption of remaining crimes, each with clear standards and rigorous calculation methods. There are also negative elements in the application of part of the foreclosure penalty, which are generally serious crimes; ransom is generally included in the national finances. The ransom of the crime of negligent injury belongs to the victim and plays the role of civil compensation.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D929

【参考文献】