矜恤思想对传统法制的影响及现代化意义

Impact on the Traditional Legal System and Modern Significance of the Thought of Jinxu

矜恤思想是中国古代法律文化中的重要思想。它是中国古代社会特质所决定的,也是中国古代家族主义和泛道德化的产物。矜恤思想对传统法制的影响体现在立法中,同时也贯穿于法律制度设计与司法实践领域。其在法律原则方面体现为追求立法简省、对特殊群体刑罚的减省和区分犯意、奖励自首;在律典中体现为赦宥、录囚、恤囚和存留养亲等制度;在司法实践中还有案件的上诉与复审以及对死刑的复核复奏。矜恤思想的现代化意义主要在于其揭示的道德与法律的关系、体现的刑法谦抑底蕴和人本主义精神。

The thought of Jinxu was one of the most important thought of ancient Chinese legal culture. It was determined by the characteristics of ancient Chinese society, and also the fruit of Chinese familism and overflow-morals. The thought of Jinxu was not only embodied in the legislation but also ran through law system designing and judicial practice. It gave an expression of save-and-simple legislation in legal principle; forgiveness to the penalty of special groups; distinguishing calculated crime and non-calculated crime and awarding the surrender; provisions such as remit, Luqiu, Xuqiu and Liuyangcunsi were reflected in legislation and code; the appeal and death penalty check system also embodied its meaning in judicial practice. The modem significance of the thought of Jinxu consisted in that shows the relationship of moral system and legal system, the modest of criminal law and the truth of the human spirit.