中国古代罪刑规范法定化研究

Crime and Punishment Norm Legally Prescribed in Ancient China

关于中国古代法是否存在罪刑法定原则问题,在学界是百年聚讼,迄难定论。综罗各家,大致可归为三种观点:肯定说、否定说以及介于二者之间的中间说。但是三种观点对中国古代法中罪刑关系的法定化都是认可的。的确,中国古代罪刑关系在立法上是表现为法定化的,即罪刑规范法定化,但在司法上罪刑之法定与非法定长期并存,形成了一个法吏实行严格的罪刑"法定"、大臣实行罪刑"非法定"、人主实行罪刑擅断三者互补互济的司法体制。即法吏、中下级官员守文据法,据此罪刑是"法定"的;大臣、高级官员据经传原情定罪,"议事以制",据此罪刑是"非法定"的;君主可以"权道制物",任意裁断,据此罪刑是擅断的。中华法系之罪刑法定与非法定和合一体的特点突出,其罪刑规范的法定化与源于西方的罪刑法定原则形似神异。

It is a centenary dispute whether there is the principle of a legally prescribed punishment for a specified crime. Generally, there are three views： affirmative, negative and intermediate; and all of these acknowledge a norm of crime and punishment legally prescribed in ancient China. In fact, it is true, however, that crime and punishment legally and not legally prescribed are simultaneous existence of justice. Middle-- and lower-- ranked officials are judged by the law, and then crimes and punishments are legally prescribed. Highly ranked officials are judged by classical works, so crimes and punishments are not legally prescribed. Emperor is judged by his own mind, and crimes and punishments are tyrannical. That crimes and punishments are legally prescribed or not is a typical characteristic of the Chinese legal system. They are alike in form but essentially dissimilar in spirit between the principle originated from the West and the norm of crime and punishment legally prescribed in ancient China.