从《历代名臣奏议》看宋代慎刑思想

发布时间：2018-01-24 03:48

本文关键词： 历代名臣奏议慎刑宋代　出处：《吉林大学》2017年硕士论文　论文类型：学位论文

【摘要】：奏议,乃臣民向君主陈述主张、上疏谏言、论理说事之文本,其内容涉及政治、军事、文化、法律、思想等多方面,可以说举凡历朝历代政治制度、君臣之道、治民之术,无不收录。作为一种体现历史意见的史料,《历代名臣奏议》具有重要的史料价值,从其中不止可以得到当时人们对该项制度的看法,也可以从此种观点中总结出当时思想发展的趋势和脉络。而宋代名臣奏议占《历代名臣奏议》收录奏议七成,是全书的精华所在。目前《历代名臣奏议》最清晰版本为1989年上海古籍出版社影印版,笔者先行进行了与法律有关的《法令》《慎刑》《赦宥》11卷内容的整理。为更加透彻地结合一朝代制度研究其法律思想,笔者将目光集中于《历代名臣奏议》的宋代部分,着重结合宋代的历史及制度,探究其奏议中所体现的法律思想其所产生的背景、原因及影响。慎刑思想是中国古代主流的法律思想,其认为刑法是不得已才用之,是教育的工具而非惩罚的工具,经国治道首先要仁民教民,要先教后刑。制刑之义在于辅助“礼”的实施,用刑要公允平正、至诚尽责、常怀恻隐之意。制刑和用刑的初级目的在于追求无冤,终极目的在于追求刑措。在《历代名臣奏议》法令卷中开卷便写明了制刑要“哀矜在念,钦恤为怀”,纵观11卷奏议文本,在制刑、用刑和刑官治理中都突出了慎刑思想。本文也将从以上三个方面对《历代名臣奏议》宋代部分中所体现的宋代慎刑思想进行整理和归纳,并分析宋代臣子制刑所追求的目的以及刑法制定所要求的价值,细察宋代用刑时的重要制度和要点,推究其用刑制度变革的原因,并探究宋代保障官吏公允用刑、防止其贪赃枉法的制度。制刑是法得以实施的开始,其涉及“刑”存在基础之探讨,涉及到刑的价值、刑的目的等范畴,在司法行政一体的中国古代社会,立法中所体现的慎刑思想则进一步关乎到了整个国家治国之道以及制度设计。受慎刑思想的影响,中国古代制刑最根本的价值在于保民、爱民,以民为本,教化为先,爱民之心犹如爱子,不可未教而先刑,凡一制度的设计以及评价,是否仁民安民,成为了一项极为重要的标准和价值取向。因以民为本,所以古人尚德尚礼不尚刑,立刑目的在于明刑弼教,刑为保障礼而生,修礼为国家之本,礼乐不兴而刑罚不中。又因德立万世,治国布政要顺应民心,因此制刑要顺应天理,顺应民众心中基本的道义观,也要平衡国法和情理。同时,对于法令本身而言,法令不可过繁,法网太密,民便会手足无措,但也要注意法令本身的稳定性和威严性,不可因情乱法,也不可有过多的法外开恩,否则国家便有法也如无法,民心不稳,国家不安。用刑指折狱理刑,在《历代名臣奏议》之中,用刑之要主要体现于折狱应怀有的态度、折狱的理念,以及在具体的用刑和量刑时应采用的方法等。一代之法,徒立法之善不足以为“善”,尤在用刑之平。在慎刑思想的影响下,古人用刑也抱有“以民为本”“哀矜”“钦恤”的理念,自此而引出宋代臣子对于宋代用刑的一系列探讨,其中包括死刑的规制、肉刑的存废、特赦和赎刑的制度设计以及宋代监狱制度的完善,如果说制刑更追求“刑措”,那么用刑则更为直接地追求“无冤”。制刑布政,必须有一定的制度作为保障,实施法令,典狱官吏的治理尤为重要,否则制度构架得再好,也只是空中楼阁,不治官吏一切皆为纸上谈兵。中国古代采用官吏分治的策略,就宋代而言宽于治官而严于治吏。对于治官宋代更多地是设计一系列制度用以相互制衡,使得官员既有施展权力和抱负的空间,又不会导致权力泛滥。然而在宋代社会变化加快,人民对土地依附性降低的历史背景下,宋代礼义观的改变导致宋代狱讼繁多,此种情况更加导致了出身低微、受教育程度较差的胥吏获得了极大的权力。为此,宋代制定了一系列制度用以限制吏的自由裁量权,以保证法令的公允实施。整体来看宋代政治有宽仁之风,宋代用刑也尤为强调慎刑、矜悯,但宋朝既有商业高度发展,文官治世,土地自由流转,人们观念革新的开明一面;同时也有上承南北朝之制,连年征战纳贡,复活肉刑,凌迟进入法定刑的阴暗面,重刑与慎刑之争烙印在整个宋代历史中,也在《历代名臣奏议》中留下了诸多相互论辩的奏议,因此我们对于宋代的慎刑思想以及《历代名臣奏议》中所体现的慎刑思想应当抱有一种客观的态度,不过分苛责古人,而是探究其中的法律思想,以及在慎刑思想影响下的制刑、用刑及治理刑官的制度和策略,并寻求其对现代法制改革的积极意义。
[Abstract]:Is subject to the monarch memorials, stating the claim, on the theory that the sparse admonition, text, its content involves the political, military, cultural, legal, ideological and other aspects, can be said that all dynasties political system, and the way people were all included. As a kind of the historical views of the historical. "The official memorials > has important historical value, from which not only can get people on the system view, can also be summed up from the trend and development point of view in the context of thought at that time. The official memorials for the official memorials included the < > 70%, is the essence of the book lies. The ancient" the most clear version > official memorials for the 1989 Shanghai Ancient Books Press edition, the author first makes the laws relating to law > > < cautiouspunishment forgiveth >11 volume content arrangement. In order to study the combination of legal system of a dynasty more clearly. The author thought, will focus on the part of the Song Dynasty "the official memorials >, focuses on the history and the study on the legal system of Song Dynasty, ideology embodied in the memorials of the background, reason and influence. The cautious punishment thought is the mainstream of ancient legal thought China, the criminal law is not only for that is a tool of education rather than punishment tool by State Road first to teach people to Jen, firstafterteachingpunishment. The penalty meaning lies in the implementation of" Rites ", the idea of auxiliary to fair and square, sincere dedication, often with compassion. Punishment and torture of the primary purpose is to pursue no injustice the ultimate goal is to pursue, punishment measures. In the official memorials > < Law volume will indicate the punishment to book" to read, Qinzhou T-shirt for arms ", throughout the 11 volumes of text in punishment, memorials, torture and punishment officer governance highlights the thought of cautious punishment. This paper will also benefit from the three aspects On "embodied the official memorials in Song Dynasty in the Song Dynasty on the thought of cautious punishment were summarized, and the analysis of the subject of punishment objective pursued by criminal law and the preparation of the required value, an important system and points to the Song Dynasty when the examination of the causes of torture, torture system reform, and to explore the protection of fair torture officials in Song Dynasty, to prevent the corrupt system. Prior to the implementation of the penalty system is started, the" punishment "based on the penalty value relates to the purpose of punishment, etc., in the administration of justice, one of the Chinese ancient society, the cautious punishment thought embodied in legislation further relates to the whole country governing and the system design. Influenced by the thought of cautious punishment, value China punishment is that ancient people, love the people, people-oriented, education first, the loving heart is like a son, can not teach first sentence, where a The system design and evaluation, whether Jen min, has become a very important standard and value orientation. Due to the people, so the ancients Suntech ceremony is not punishment, punishment is made for the protection of criminal punishment with education, and ritual ceremony for the country, repair, in addition to music and not punishment. And as the cadre, the rule of cloth dignitaries adapt to the people, so the penalty should conform to justice, conform to the basic moral people view, also to balance the law and reason. At the same time, the act itself, law can not be too complicated, the law is too close, people will know what to do, but also pay attention to the stability of the statute itself the majesty of, not because of feeling, also can not have too much extrajudicial mercy, otherwise the country will have law if not popular, unstable countries uneasy. Torture refers to physical punishment in the analysis, "the official memorials >, the main body is in the torture to analysis should have attitude, Analysis the concept, and should be used in the specific criminal sentencing methods. And the generation of the law, the legislative acts of good enough "good", especially in the flat. The effects of torture thought of cautious punishment under the torture is "people-oriented" "to" "the chin" the concept, since the Song Dynasty leads to a series of discussion of the Song Dynasty vassal torture, including the death penalty regulations, the abolition of corporal punishment, perfecting the system of the Song Dynasty and the design of amnesty and the prison system, if the punishment is more the pursuit of "punishment measures", so the idea is more direct to the pursuit of "no injustice". The penalty Buzheng, there must be some system as a guarantee, the implementation of law, prison officials governance is particularly important, otherwise the system is good, just do not treat castles in the air, everything is empty talk. The official officials of the divide and conquer strategy by ancient China, the Song Dynasty in terms of wide The officer and strict official governance. For government officials in Song Dynasty is more of a series of system design to each other, making officials both show the power and ambitions of the space, but also do not cause flooding. However, power in the Song Dynasty is changing, people's dependence on land decreased under the historical background of the Song Dynasty ritual concept changes the Song Dynasty led to the lawsuit is various, such situation has led to more humble origins, the poor level of education was a great power. Therefore, the development of a series of systems to the discretion of officials to ensure legal restrictions, the implementation of the fair. The whole song Dynasty politics have forgiveness of the wind, the Song Dynasty also torture underlines the cautious punishment, to pity, but the Song Dynasty is highly developed, commercial and civil service, free land circulation, people's concept of innovation but also on the liberal side; the southern and Northern Dynasties for successive years, Na Ling Gong, the resurrection of corporal punishment, Late into the dark side of legal punishment, punishment and punishment for the brand in the history of the Song Dynasty, also left a lot of debate in the history of "mutual zouyi official memorials", so we in the Song Dynasty thought of cautious punishment and embodied the "official memorials > in the thought of cautious punishment should have an objective attitude, not too hard on the ancients, but on Legal Thought of them, and the thought of cautious punishment under the influence of punishment, torture and punishment management system and strategy officer, and seek its positive significance to the modern legal system reform.

【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D909.2

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