“慎刑”与“宽严相济”——以中国传统法为视角的考察

"Cautious Punishment" and "Tempering Criminal Policy with Mercy"——Examining from the perspective of traditional Chinese law

"慎刑"是中国传统法具有和谐价值的重要组成部分,能达到缓和阶级矛盾,维持政权稳定的作用。"宽严相济"是当前我国具有社会主义法制特色的刑事政策,对于化解社会矛盾、最大限度地减少不和谐因素,维护和谐稳定的社会秩序等方面有重要作用。"宽严相济"与"慎刑"存在历史的相通性,宽严相济的传统文化基础是"以人为本"和"德法兼济",而传统社会实现社会稳定、长治久安的法律手段即是"慎刑"。"慎刑"在立法层面上体现为"刑罚世轻世重",在司法层面上体现为程序上的严谨及人伦观照。"慎刑"促进了中国古代社会的稳定及政权的长治久安,对当前"宽严相济"刑事政策的立法及司法实践也具有借鉴意义。

＂Cautious penalty＂ is an important part of traditional Chinese law with harmonious value, mitigating class contradiction and maintaining stability of regime. ＂Tempering criminal policy with mercy＂ as a criminal policy with Chinese characteristics on legal system has a vital role in resolving social contradiction, decreasing unharmonious factors to the largest degree and maintaining a harmonious and stable social order. ＂Tempering criminal policy with mercy＂ and ＂cautious penalty＂ are historically interlinked. The traditional cultural basis of ＂tempering criminal policy with mercy＂ is ＂putting people first＂ and ＂combining ethics and law＂, while the legal way of maintaining the stability of traditional＂ society remains following ＂cautious punishment＂. In legislation, ＂cautious punishment＂ is represented by ＂ according to the standard that things change as time flies to decide the propriety on penalty＂, and in judicature, it is embodied by preciseness of program and care from humanity. ＂Cautious punishment＂ had promoted both the stability of ancient Chinese society and that of regimes, and has great meaning of reference for the legislation and practice of current ＂tempering criminal policy with mercy＂.