中国刑罚轻缓化之肇始——清末修律中刑罚轻缓化之动因、概况及评析

The Origin of Moderating Trend of Penalty in China ——Causes、 Survey and Reviewing of Moderating Trend ofPenalty in the Amendment of Laws in the Last Years of Qing Dynasty

清朝末年的修律中 ,修律者对旧律进行了大量的删减 ,引进了西方较为进步的刑法制度 ,从而开启了中国刑法近代化之门。封建社会极为野蛮、残酷之刑法亦由此朝文明方向发展 ,其表现之一便是刑罚力度上趋于轻缓。使清末刑罚趋于轻缓并不是统治者完全自愿之举 ,甚至可以说是情非得已 ,但此次修律事实上在刑法总则和刑法分则中较大程度实现了刑罚的轻缓化。清末刑罚轻缓化既有其先进性 ,亦有其局限性。

During the last years of Qing Dynasty, there was a movement of amending laws, amenders abridged large numbers of the rules of Qing Dynasty, and introduced many advanced criminal law systems from western countries, which opened the door of modernization of Chinese criminal law. Therefore, the feudal barbaric criminal law began to be modernized, and the penalty began to be lightened and forgiven. In fact,moderating penalty did not accord with the will of the dynast, but they had to do so. However, the amendment of the criminal law realized its moderation to some degree. During the course of amendment, there are impelling factors and obstacles.