中国古代劳役刑执行制度的发展与演变

发布时间：2018-06-03 17:44

本文选题：劳役刑 + 徒刑　；参考：《中国政法大学》2009年硕士论文

【摘要】： 中国古代的劳役刑以徒刑为代表,隋朝以后的流刑也规定先执行一定期限的劳役刑。根据现有史料,徒刑萌芽于商周时期,后世不断得到发展;流刑的发展可分为两个大的阶段,夏商时的流刑是对罪人逐出所在群体,这种惩罚源自原始社会后期,自然谈不上劳役刑问题。南北朝以后逐渐兴起的流刑与此不同,是将罪犯迁出原居住地,或在迁后地服一定期限劳役。笔者认为,我国古代劳役刑的发展过程大致可以分为五个阶段,夏商周三代为第一个阶段,这一时期,劳役刑在刑罚体系中的地位和作用远不及肉刑;战国至西汉前期为第二个阶段,这一阶段,劳役刑往往伴随着肉刑,各等级的轻重程度往往与肉刑的轻重相对应;第三个阶段是西汉中期以后到隋以前,这个阶段是劳役刑制度逐渐完善的时期。汉文帝刑制改革以后,肉刑基本被废除,劳役刑适用范围得到扩大而且劳役刑由无期变为有期。南北朝时期,流刑和徒刑进入法典,为封建制五刑的形成奠定了基础;第四个阶段是隋唐至清末变法修律之前,隋唐时封建制五刑正式形成,徒刑与流刑在刑罚体系中占据了重要地位,这种状况一直延续至清末。清末修律以后为第五个阶段,清末变法修律过程中,劳役刑走向终结并为自由刑所取代,也正是在这个过程中,中国的监狱实现了近代化。本文的研究正是沿着上述历史进程而展开的。本文包括引言、正文、结论三部分。引言对法律史学界的研究成果作了介绍,说明了本文的研究对象、研究方法及研究思路。本文正文分为五章。第一章从总体上论述中国古代的劳役刑,对我国古代劳役刑的演变、劳役刑执行制度的特征及第二至第四章的线索作了简要说明。第二章探讨秦汉至南北朝的劳役刑执行制度,借助于传世文献和出土文物资料对秦汉时期的劳役种类、劳役犯人的管理制度以及汉文帝刑制改革作了探讨,根据现有的关于魏晋南北朝劳役刑的资料对当时的徒刑与流刑给予介绍。第三章探讨唐宋的劳役刑执行制度,首先根据《唐律疏议》、唐《狱官令》、《旧唐书·刑法志》、《新唐书·刑法志》等资料对唐代徒刑和流刑的执行制度进行了探讨,然后对宋代刑罚体系中的劳役刑进行了说明并重点对配隶制度、编管法、圜土制度给予介绍。第四章探讨明清的劳役刑执行制度,先对明朝的以役代刑规定进行了介绍,继而考察了明代劳役的种类及劳役场所,又对明代的充军刑给予专门介绍,关于清代的劳役刑本文重点介绍了发遣刑,因为这是清代特有的一种刑罚。第五章研究清末监狱的近代化及自由刑的确立,对清末劳役刑被废的背景、起因与经过进行了探讨,劳役刑的被废与监狱近代化是同一过程,研究劳役刑的终结就必然涉及监狱近代化问题,劳役刑在司法实践中走向终结之后清廷最终在实体法上确立了自由刑,至此,传统的劳役刑彻底退出了历史舞台。结论部分笔者对全文进行了简要总结并谈了个人的几点浅见供学界师友批评参考。
[Abstract]:The ancient Chinese criminal punishment was represented by imprisonment, and the punishment after the Sui Dynasty was also prescribed for a certain period of labour punishment. According to the existing historical data, the imprisonment was sprouted in the Shang and Zhou dynasties, and the later generations continued to develop; the development of the exile could be divided into two major stages, and the punishment of the Xia Shang Dynasty was a group of the sinners, which originated from the primitive society. In the later period of the meeting, the question of labor punishment is not a matter of nature. The gradual rise in the northern and Southern Dynasties is different from this, which is to move the criminal out of the original place of residence, or to serve a certain period of service in a certain period of time. The author thinks that the development process of the ancient labor punishment in our country can be divided into five stages, the Xia Shang Dynasty is the first stage on Wednesday, and the labor punishment is in the period of this period. The position and function of the penalty system is far less than the meat punishment; the period of the Warring States period to the early Western Han Dynasty is second stages. In this stage, the labour punishment is often accompanied by meat punishment. The degree of the grade is often corresponding to the seriousness of the meat punishment; the third stage is the period after the middle of the Western Han Dynasty to the Sui Dynasty, and this stage is a period of gradual perfection of the system of labour punishment. After the reform of the emperor's punishment system, the meat punishment was basically abolished, the scope of application of labour punishment was expanded and the labour punishment was changed from time to time. In the period of the northern and Southern Dynasties, the flow of punishment and imprisonment entered the code, which laid the foundation for the formation of the feudal five sentences; the fourth stage was the formal formation of the five sentences in Sui and Tang Dynasties and the imprisonment and imprisonment in the Sui and Tang Dynasties. The flow of punishment occupies an important position in the penalty system. This situation has been extended to the end of the Qing Dynasty. After the late Qing Dynasty, the fifth stages of the period of the period of the period of the Qing Dynasty, during the late Qing Dynasty, the labor punishment was terminated and replaced by the free punishment. It was in this process that the Chinese prison had been modernized. And unfolded.
This article includes the introduction, the text, and the conclusion of the three part.
The introduction introduces the research results of legal historians, and illustrates the research objects, research methods and research ideas.
The text of this article is divided into five chapters. The first chapter discusses the labor punishment in ancient China in general, and gives a brief description of the evolution of the ancient labor punishment in China, the characteristics of the execution system of labour punishment and the clues of the two to fourth chapters. The second chapter discusses the execution system of the labour punishment in the Qin and Han Dynasties to the north and the South Dynasties, and by the use of the literature and the unearthed cultural relics of the Qin and Han Dynasties. The types of labor in the period, the management system of the criminal prisoners and the reform of the emperor's penal system were discussed. According to the existing information about the labor punishment in the Wei, Jin, and the northern and Southern Dynasties, the third chapters discussed the execution system of the penal service in the Tang and Song dynasties. The documents of Tang Dynasty, criminal law and so on, discussed the execution system of the Tang Dynasty and the execution of the punishment, and then explained the labor punishment in the penalty system in the Song Dynasty and introduced the system, the method of editing and the circular soil. The fourth chapter discussed the execution system of the labour punishment in Ming and Qing Dynasties, and introduced the provisions of the service of the Ming Dynasty. The type of labour service in the Ming Dynasty and the place of servitude were investigated, and the punishment of the Ming Dynasty was given a special introduction to the punishment of the Qing Dynasty. This is a special punishment in the Qing Dynasty. The fifth chapter studies the modernization of the prison in the late Qing Dynasty and the establishment of the free punishment, the background of the abolition of the criminal punishment in the late Qing Dynasty, the cause and the past. It is the same process that the abolition of labour punishment and the modernization of the prison is the same process. The end of the study of labour punishment inevitably involves the problem of prison modernization. After the end of labour punishment in judicial practice, the Qing court finally established the free punishment in the substantive law. At this point, the traditional labour punishment completely withdrew from the historical stage.
The conclusion part briefly summarizes the full text and talks about some personal opinions for reference by academic friends.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D929;D924.1

【参考文献】