论清末“新政”时期的刑法变革

On the Reform of Criminal Law During New Deal Movement of Late Qing Dynasty

20世纪初,清政府在内忧外患中开始“新政”,法制改革是其重要组成部分,刑法首先修订,在经过近十年的前期准备和制定工作后,公布了《大清新刑律》;该法在法律体例形式、刑法罪名、刑罚体系等方面都发生了变革;并在法律中确立了刑法礼法分立、罪行法定、法律平等和刑罚人道主义等现代刑法原则;刑法的变革使原有中华法系走向解体,是中国刑法发展现代化的重要一环,但在当时中国社会未能发挥应有的作用,这也启示现代人要更新传统的刑法观念,树立现代刑法意识。

In early 20th century, Qing Dynasty began to implement the ＂New Deal＂, in which legal system reform was one of the important measures. The legal system reform began with revision of criminal law. New Criminal Law of Qing Dynasty was enacted after a nearly ten-year preparation and legislation. The criminal law was revised in terms of its layout and framework, accusation, and system of punishment. It established such modem criminal law principles as separation of ceremonial rites and regulations from criminal law, crime judged by law, legal equality and penalty humanitarianism. The criminal law reform, which has disintegrated Chinese legal genealogy, is an important milestone in the modernization of Chinese criminal law. However it wasn＇ t played an effective role in its time. This reveals that people in modem society should build up modem criminal law concepts in stead of traditional one.