明清时期家法族规中的私刑考略及启示

A Brief Study of Lynching in Family Laws and Regulations in Ming and Qing Dynasties and its Enlightenment

家族私刑与国家刑罚相辅相成,构成明清时期“刑”的两条线。家族私刑种类由少到多、体系由不完善走向完善,严厉程度逐步提升是明清家族私刑发展的基本脉络。家族私刑的裁断遵循累犯加重、血缘亲疏等决定惩罚轻重的原则,控诉、审理及救济程序的设置处处体现了封建社会尊卑有序、家族本位现实。在当代法治文明下,须合理界定“私刑”并坚决反对私刑及其变种的滥用,借鉴封建家法族规并结合现代法治精神,以比例原则厘清家长惩戒权的正当化界限。

Family lynching and state penalty were complementary to each other,forming two lines of“penalty”in Ming and Qing dynasties.The basic trend of the development of family lynching in Ming and Qing dynasties is that the varieties of family lynching are from less to more,the system is from imperfect to perfect,and the severity degree is gradually increased.The adjudication of family lynching follows the principles of aggravating recidivism and consanguinity intimacy relationship?to determine the severity of punishment.The establishment of indictment,trial and relief procedure in all respects reflects the reality of respecting for?hierarchy?and order and adopting the clan standard of the feudal society.Under the contemporary legal civilization,“lynching”should be reasonably defined and the abuse of lynching and its variants should be firmly opposed.Drawing on the clan laws and regulations and combining the spirit of modern rule of law,the principle of proportionality is used to clarify the legitimate boundaries of parental disciplinary power.