试论秦汉刑罚中的司寇刑

Criminal Penalty Sikouxing in the Qin and Han Dynasties

秦和汉初的司寇刑一般是耐为司寇刑的简称,属无期徒刑。获刑者有立户、名田宅等重要权利,但刑徒身份使之处于里中社会生活的边缘位置。司寇的劳役主要有侦捕疑犯、监管刑徒、传递文书和运送物资四类,这与徒隶内部各级刑徒的劳役已经混淆的状况不同。此时司寇的社会地位在逐渐下降,是为汉文帝刑罚改革的重要背景。改革后的司寇刑因性别不同而异名,男性的刑名是耐为司寇,女性的刑名是作如司寇,都是二岁刑。至迟在公元91年二者又重新统称为司寇。此时司寇刑的惩罚措施主要有限制自由、取消户籍等七条,但并非只针对司寇,说明刑期的长短已经成为衡量刑罚轻重的主要标准。秦汉时期的司寇刑经历了从兼具社会身份、劳役属性到只有劳役属性的转变,这种转变对秦汉时期的社会性质和刑罚体系都产生了重要影响。

In the Qin Dynasty and early years of the Western Han Dynasty,Sikouxing is an abbreviation of Naiwei Sikou(Nai means shaving the criminal’s eyebrows and beards as a humiliating punishment),which belongs to life imprisonment.Even though the criminals who are sentenced to Sikouxing still own some important rights such as keeping the household registration and being granted homestead(farmland and house)from government,their identity marginalizes themselves in social life.The penal servitude of Sikou includes arresting suspects,supervising prisoners,delivery of documents and transportation of supplies,which differs from the confused state of Tuli’s(the criminals with severer punishment than Sikou,including several ranks)forced labors.In this period the social status of Sikou was gradually getting lower than before which became important background of criminal penalty system reformation presided by Emperor Wen of Han.After the reformation,Sikouxing had got different proper nouns based on gender,namely Naiwei Sikou for male,and Zuoru Sikou for female,both are two-year punishment.No later than 91A.D.,these two kinds of punishment were collectively referred to as Sikou again.During this time,there were seven kinds of penalties for Sikouxing such as restraint of liberty,cancel household registration and so forth,however,these penalties were not only aiming at Sikou,which means the length of sentence had already become the main standard of the seriousness of punishment.During the period of Qin and Han dynasties,Sikouxing firstly combined identity and corvee,and then only corvee existed.This change had great influence on social nature and criminal penalty system.