试论秦汉简牍法律用语中的罪刑共名

“Crime and Penalty Sharing the Same Term” in Legal Document on Bamboo Slips in Qin and Han Dynasties

在秦汉简牍法律文献中,常见有罪刑共名的现象。所谓罪刑共名,实际是将某犯罪行为应受的刑罚之名称作为该种罪名。比如,"耐"本是一种刑罚,有时又说"耐罪";"刑"本指施加肉刑,有时又说"刑罪";"黥城旦"本是一种复合刑,有时又说"黥城旦罪";"腐"本指宫刑,有时又说"腐罪"等。通过例证分析,我们认为该种现象属于古人的一种习惯称谓法,即用罪名来指称该犯罪行为应受的刑罚。这说明古人对罪与刑的区分还不甚讲究,较为笼统,还不像我们今天这样细致严密。

In legal documents on bamboo slips in Qin and Han dynasties, it was common for crime and penalty to share the same term, which means that the term for the penalty a criminal was to receive was the same as the crime he or she committed. For example, ' nai' as such was a penalty, but it was also termed ' nai crime'; 'Xing' primarily referred to implement of corporeal penalty, but it was also termed 'xing crime';' qing cheng dan' as such was a compound penalty, while it was at the same time termed ' qing cheng dan crime'; 'fu' as such referred to castration, but it was also used as 'fu crime', etc. Through the analysis of these examples, the writer of this article comes to the conclusion that this phenomenon was a conventional way of terming, using the name of a crime to refer to the penalty a criminal was to receive. It indicates that, unlike today,people in the past did not attach importance to the distinction between crime and penalty.