论唐律换刑制度对现行刑法的思考

Reflections on the Substitution of One Penalty for Another in Tang Dynasty for the Current Criminal Law Punishment System

唐律中规定的换刑制度是指由于法定的特殊原因,把律条规定的刑罚转换成其他刑罚来执行。换刑并不是一种特权,因为它仍以施用实刑为前提,且所换用后的刑罚与律条所规定的刑罚也大致相当,这体现了刑罚执行的灵活性。我国刑法中规定的拘役刑由于刑期较短,达不到改造罪犯的效果,反而可能会使罪犯沾染恶习,人身危险性增强。管制刑由于实行社区矫正,可以使罪犯在正常的生活中得到改造,是拘役刑较好的替代刑罚。梯度式的刑罚执行体系,可以使罪犯在刑罚执行完毕以后更好地适应社会,避免其再次犯罪。

The substitution of one penalty for another in Tang dynasty refers to the penalty prescribed by law being changed to another punishment to perform due to the statutory special reasons. For the substitution is not a privilege, because it is still to use real punishment as the premise, and the alternative penalty is also roughly same as the provisions of punishment in the law. It reflected the flexibility of the execution of the penalty. Detention penalty stipulated in the criminal law of the People＇s Republic of China, due to the short term, could not correct the criminals actually. It may make the criminals be tainted with bad habits and the personal dangerousness was enhanced. Due to the implementation of community correction, the control punishment can make the criminal correction in normal life. Criminal detention is a better alternative penalty. The gradient of the execution system of the penalty can make the offender better adapt to the society and avoid committing the crime again.