杖刑源流论考

On Textual Research to Headstream of Punishment of Flogging in Ancient China

中国杖刑历史极为久远。远古笞杖鞭不分,均源于鞭扑薄刑。就其在刑罚中的地位而言,三代鞭扑之刑不入五刑;西汉文景废肉刑、定笞刑,依然笞杖不分,却是主刑;东汉已有杖刑,但为法外刑,往往鞭杖连称;魏晋时期杖刑虽不入五刑,但已为法定刑;从北魏时起,杖刑是五刑之一,且是最轻刑等;从隋朝至清末,杖刑则作为稍重于最轻刑等的笞刑而列入五刑。此外,有时,它又是附加刑或代用刑。清末修律,废除了杖刑,但它在社会上仍然有着消极影响。

It was a long time for the history of punishment of flogging in ancient China. There were not marked differences of the stripe, whipping and flogging. Flogging came from the lightest punishment of lash. As far as the status of flogging in the punishment systems, it was not one of the five chief forms of criminal punishment in the Xia, Shang and Zhou dynasties. It was one of the principal punishments, although there were not marked differences between whipping and flogging in the Western Han Dynasty. There was flogging in the Eastern Han Dynasty, nevertheless it was illegal punishment, and sometimes it was called stripe and flogging. It was statutory punishment, although it was not one of the five chief forms of criminal punishment in Wei and Jin dynasties. From Northerly Wei on, it was one of the five chief forms of criminal punishment, and it was the lightest punishment. From Sui to the late Qing Dynasty, it was one of the five chief forms of criminal punishment, and a little weightier than the lightest punishment--whipping. On the other hand, it sometimes was supplementary punishment or substituted punishment. It was abated in the period of law reformation in the afternoon of the Qing Dynasty. So far, there is stir passive aftereffect for flogging to some Chinese people.