先秦刑余之人考论:形象、制度与观念

发布时间：2019-06-13 18:27

【摘要】：如何对待刑满释放人员才能既充分保障人权,又效预防其再犯,是官方和学术界面对的棘手问题。先秦刑余之人的安置制度以及其所衍生的后果和催生的观念,可为当下提供镜鉴。五帝夏商时用刑止于政治性惩罚,不及意识形态和观念控制,致使刑余之人有"成神"之可能。西周政权强化对刑余之人的空间、身份、道德的三重区分,创设"近而不亲"的公职化安置制度,却因其统治阶层道德败落和意识形态崩溃致使刑余小臣掌权,甚至获得"成圣"之可能,直接对宗周价值体系造成颠覆。秦汉以后刑制转变,徒流取代肉刑,强调国家利益,却又不免刑余之人"英雄"辈出。相较而论,周代以德为基础的制度设置,似更契合当下德政、善治、法治共生之需。如何扬长避短,古为今用,则尚待细绎。
[Abstract]:How to deal with those released from prison can not only fully protect human rights, but also effectively prevent their recurrence, which is a thorny problem faced by the official and academic circles. The resettlement system of the remaining people in the pre-Qin Dynasty, as well as its consequences and ideas, can provide a mirror for the present. The punishment of the five emperors in Xia and Shang dynasties ended in political punishment, which was not under the control of ideology and concept, which made it possible for those who punished the rest to become gods. The Western Zhou regime strengthened the triple distinction between space, identity and morality, and created the "near but not pro" official resettlement system, but because of the moral decline of its ruling class and the collapse of ideology, Yu Xiaochen came to power, and even obtained the possibility of "sanctifying", which directly subverted the value system of Zongzhou. After Qin and Han dynasties, the criminal system changed, and the flow replaced corporal punishment and emphasized the interests of the country, but there were many "heroes" who could not help but punish the rest of the punishment. In contrast, the establishment of the system based on morality in Zhou Dynasty seems to be more in line with the needs of current moral governance, good governance and the symbiosis of the rule of law. How to make full use of strengths and avoid weaknesses, the use of ancient times for the present, has yet to be elaborated.
【作者单位】：清华大学法学院;清华大学;
【分类号】：D929

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