浅析中国古代流放制度

发布时间：2018-04-20 17:49

本文选题：古代刑罚制度 + 流放制度　；参考：《山东大学》2012年硕士论文

【摘要】：中国古代的刑罚,是古代法律制度的重要组成部分,它的发展与变化,实质上也是整个中国社会发展与进步的浓缩。刑罚体系的发展与变化的原因是多层次的,不同的时代有不同的特点,同时代不同的当权者亦有不同的举措。但是总的发展趋势是以原始的野蛮、落后、残暴向着文明、慎刑方向发展。流放制度是一种将罪犯放逐到偏远地区的刑罚,在我国古代不但有着悠久的历史,也在我国古代法律中有着重要的地位。在乡土观念浓重的中国古代,流放无论是在精神上还是物质上都对被流放的罪犯有很大的伤害性,而流放也成为惩罚力度仅次于死刑的刑罚。流放制度最早的记载在《尚书》中。然而流放制度的产生虽早,却并没有从一开始就大量出现在司法实践中,而从零星的作为律外之刑来应用逐渐发展到成为正规的刑罚种类。直到隋开皇律,流放制度才正式被列入国家法律体系,以徒流刑为中心的笞、杖、徒、流、死五刑制度正式确立,而且从唐朝开始一直沿用到清朝灭亡。流刑作为五刑之一被列入法条,才开始大量被应用在司法实践中。在流放制度没有被正式规定在法条之内以前,流放制度的应用随机性较大,其内容和执行方式总是根据执政者和司法者的个人意思而变化,所以流放制度在出现的前期呈现出多种多样的执行形式。流放制度于北魏入律,并由《唐律疏议》固定下来,自此之后封建社会所应用的流刑均以此为蓝本,即使后来又出现各式流刑的附加刑或替代刑等,流放制度的基本形式从未改变。本文从流放制度的变迁及其原因为研究角度,通过对这一刑罚制度的研究,在细微变化之处找出异同点,然后与当时社会相照应,找出社会的变化对于法律的影响。通过历史的经验和成果,以期促进当代法律的制定及发展。法律是社会经济关系、政治关系的反应和产物。在中国这个历史悠久的国家,很多传统思想观念或文化并不会因社会制度不同或生产力发展而绝迹。一部法律的良善并不单单取决于它的逻辑完整或用词精准,更应应符合基本人性和普通大众的是非观。在这样的社会环境下,前代的法律及其思想对于现代法律的制订、应用有着不可忽视的借鉴作用。现代中国的立法,不能完全摒弃前代法律,无视国情而空谈法律,而应该在满足现代法律基本追求的基础上,结合中国的基本国情和自身特点来建立既包含正义又被大众所接受的法律制度。
[Abstract]:The penalty in ancient China is an important part of the ancient legal system, its development and change, in essence, is also the concentration of the development and progress of the whole Chinese society. The reasons for the development and change of penalty system are multi-level, different times have different characteristics, and different authorities have different measures. But the general trend of development is primitive barbarism, backwardness, brutality towards civilization and cautious punishment. Exile system is a penalty to banish criminals to remote areas. It not only has a long history in ancient China, but also plays an important role in the ancient law of our country. In ancient China, where the local concept was very strong, exile had great harm to the convict both spiritually and materially, and exile was second only to the death penalty. The earliest record of exile is in Shang Shu. However, although the exiled system came into being early, it did not appear in a large number of judicial practice from the beginning, but gradually developed from sporadic application as the extra-legal punishment to the formal punishment category. It was not until Sui Kaihuang's law that the exile system was formally included in the national legal system. The system of caning, staff, apprenticeship, liu and death was formally established, and it was used from the Tang Dynasty until the death of the Qing Dynasty. As one of the five punishments, floating penalty was included in the law, and began to be widely used in judicial practice. Before the exile system was formally stipulated in the law, the application of the exile system was more random, and its content and execution always varied according to the personal wishes of the rulers and the judiciary. Therefore, exile system in the early stage of the emergence of a variety of forms of implementation. The exile system was established in the Northern Wei Dynasty and was established by the Tang Law. Since then, the floating penalty used in the feudal society has been based on it, even though there were various supplementary punishments or alternative punishment for the floating punishment later, and so on. The basic form of exile has never changed. From the point of view of the change of exile system and its causes, this paper, through the study of the penalty system, finds out the similarities and differences between the minor changes and the reference of the society at that time, and finds out the influence of the changes of the society on the law. Through the historical experience and achievements, to promote the formulation and development of contemporary law. Law is the reaction and product of social and economic relations and political relations. In China, a country with a long history, many traditional ideas or cultures do not die out because of different social systems or the development of productive forces. The goodness of a law depends not only on its logical integrity or precision, but also on its basic humanity and the general public's view of right and wrong. In such a social environment, the previous laws and their thoughts can not be ignored in the application of modern laws. The legislation of modern China should not completely abandon the previous generation of laws and ignore the national conditions, but should be based on the basic pursuit of modern law. Combining with China's basic national conditions and its own characteristics to establish a legal system that includes justice and is accepted by the public.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D929;D924

【参考文献】