宋代士大夫的肉刑法律观
发布时间：2018-09-11 14:52
【摘要】：肉刑是中国古代重要的刑罚制度。自汉文帝废除肉刑后,关于肉刑的争议从未间断,宋代的肉刑议论则是整个过程中重要的一环。宋代肉刑争议所体现出刑罚观念既有对前人刑罚观念的继承,也有自身的独创,对后世刑罚理念产生深远影响。在宋人文集、《宋史》等文献中存有大量关于士大夫反映肉刑议论及其法律观念的史料。在梳理与回顾宋代刑罚制度、刑罚观念、肉刑争议及法律文化四方面的学术史及研究现状基础上,通过论述分析先秦及至宋代肉刑法律实践、肉刑争论及宋代出现肉刑争论的原因,反映了宋代士大夫以下肉刑法律理念:士大夫因“圣贤之意,观自然之理”的圣人制刑观、“善刑恶则无忧,恶刑善则凶至”的善恶法律观、儒家价值分殊的宽严法律观及“有罪当罚,无罪不罚”的刑罚虚实观念。宋代士大夫关于肉刑争论的法律理念与实践对后世产生了巨大影响,主要有三个方面表现:一是宋代以后大规模议复肉刑活动的停止,肉刑在制度与实际应用方面有所恢复;二是重刑主义得到发展,轻罪重刑、“刑以弼五教”制刑趋势;三是理学“仁善”理论在刑罚适用中得到体现。宋代士大夫肉刑议论背后正是传统法律观念的特殊价值的反映。
[Abstract]:Corporal punishment is an important penalty system in ancient China. Since the abolition of corporal punishment by Emperor Wen of the Han Dynasty, the controversy on corporal punishment has never stopped, and the debate on corporal punishment in Song Dynasty is an important part of the whole process. The controversy of corporal punishment in Song Dynasty reflects that the concept of penalty not only inherits the former concept of punishment, but also has its own originality, which has a profound influence on the concept of penalty in later generations. In the collected works of Song Dynasty, the History of the Song Dynasty and other documents, there are a lot of historical materials about the scholars and officials reflecting the views on the punishment of flesh and their legal concepts. On the basis of combing and reviewing the academic history and current research status of penalty system, penalty concept, buttocracy dispute and legal culture in Song Dynasty, this paper discusses and analyzes the legal practice of corporal punishment from pre-Qin to Song Dynasty. The debate on corporal punishment and the reasons for the controversy of corporal punishment in Song Dynasty reflect the following legal concepts of corporal punishment in the Song Dynasty: the concept of saints' system of punishment for the sake of "the meaning of saints and saints, view of reason of nature", and "good punishment and evil punishment are not worryless," The concept of law of good and evil, the view of lenient and strict law with different value of Confucianism and the concept of criminal punishment, innocence and impunity. The legal ideas and practices of the scholars and officials in the Song Dynasty have had a great influence on the later generations, mainly in three aspects: first, after the Song Dynasty large-scale discussion on the cessation of the meat-penalty activities, the corporal punishment in the system and practical application has been restored; The second is the development of the doctrine of heavy punishment, the heavy punishment of misdemeanour, the tendency of making punishment by the five religions of pil, and the embodiment of the theory of benevolence and goodness of Neo-Confucianism in the application of punishment. It is the reflection of the special value of the traditional legal concept behind the discussion of the butchery punishment of the literati and officials in the Song Dynasty.
【学位授予单位】：南昌大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D929
本文编号：2237010
[Abstract]:Corporal punishment is an important penalty system in ancient China. Since the abolition of corporal punishment by Emperor Wen of the Han Dynasty, the controversy on corporal punishment has never stopped, and the debate on corporal punishment in Song Dynasty is an important part of the whole process. The controversy of corporal punishment in Song Dynasty reflects that the concept of penalty not only inherits the former concept of punishment, but also has its own originality, which has a profound influence on the concept of penalty in later generations. In the collected works of Song Dynasty, the History of the Song Dynasty and other documents, there are a lot of historical materials about the scholars and officials reflecting the views on the punishment of flesh and their legal concepts. On the basis of combing and reviewing the academic history and current research status of penalty system, penalty concept, buttocracy dispute and legal culture in Song Dynasty, this paper discusses and analyzes the legal practice of corporal punishment from pre-Qin to Song Dynasty. The debate on corporal punishment and the reasons for the controversy of corporal punishment in Song Dynasty reflect the following legal concepts of corporal punishment in the Song Dynasty: the concept of saints' system of punishment for the sake of "the meaning of saints and saints, view of reason of nature", and "good punishment and evil punishment are not worryless," The concept of law of good and evil, the view of lenient and strict law with different value of Confucianism and the concept of criminal punishment, innocence and impunity. The legal ideas and practices of the scholars and officials in the Song Dynasty have had a great influence on the later generations, mainly in three aspects: first, after the Song Dynasty large-scale discussion on the cessation of the meat-penalty activities, the corporal punishment in the system and practical application has been restored; The second is the development of the doctrine of heavy punishment, the heavy punishment of misdemeanour, the tendency of making punishment by the five religions of pil, and the embodiment of the theory of benevolence and goodness of Neo-Confucianism in the application of punishment. It is the reflection of the special value of the traditional legal concept behind the discussion of the butchery punishment of the literati and officials in the Song Dynasty.
【学位授予单位】：南昌大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D929
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