中国法律文化中“赦”与“非赦”问题研究

Research on Pardon and Non-pardon in Chinese Traditional Culture of Law

"赦宥"这一屡屡在中国古代法律典籍中被提及的名词,往往因其实施者至高无上的地位而被笼罩上一层神秘的色彩。又因其被当作统治者对有罪之人的一种宽恕,属于法外开恩行为而在古代社会颇受争议,产生了"重赦说"、"非赦说"和"折中说"三种不同的观点。但在西方社会,赦免制度却随着时代的发展变迁而逐渐完善,并逐渐成为法治健全国家发扬人道主义精神、纠正刑法偏失、实现社会整体利益和个案处理实质平衡的重要手段之一。新中国成立后的司法实践中,赦免制度虽然已被多次适用,但却给人以缺少法律依据的印象,在全面推进依法治国的时代背景下,有必要完善赦免的相关法律制度并使之服务于依法治国的实践。

Pardon frequently appears in the law literature of China＇s feudal era and gives it an air mystery because of the executors who have the supreme ruler. It was a mercy which monarchs gave and had been criticized in past dynasties. The argument about the pardon system＇s necessity had been developed into three kinds of theories： the affirmation theory,the denial theory,and the compromised theory. Otherwise,the pardon system is used by many countries in modern society ruled by law,even becomes a way to display socialist humanitarianism and rectifies deviation of criminal law to realize the achievement of cases dealing with the substance of justice effectiveness. Though pardon system had been used many times after new China was founded,it felt like useless. Under the circumstances of ruling the country by law,it is necessary for us to perfect the relevant legal system of pardon to serve the practice of ruling the country by law.