汉代迁徙刑形态之变——从“迁者所包”出发

Change of the Form of Penalty of Exile in Han Dynasty——Start from its Implicated Punishment

迁徙刑在汉代表现出形态的变化,其变化原因或可追溯至汉文帝刑罚系列改革中对缘坐法的废除。在秦及汉初,汉代迁徙刑的主要形态表现为“迁刑”,其刑罚内容除本身作为正刑的“迁”之外,尚具有“包”作为其缘坐刑罚。而文帝废除连坐法,或将作为迁刑缘坐刑的“包”一并废除,此举即对迁刑的制度功能产生了重大影响,也使得此后的汉代迁徙刑呈现出以“徙刑”为主要内容的形态。而迁刑之所以会受影响,与迁刑本身的刑罚功能有着很大关系。

This article starts from the change of the form of the Penalty of Exile in Han Dynasty,and traces back to the abolition of the law of implicated punishment in the series of reforms of Han Dynasty.In Qin Dynasty and the early Han Dynasty,the main form of the Penalty of Exile was named“Qian”,and the content of the penalty was not only the criminal punishment itself,but also implicating other related people as its implicated punishment.However,Emperor Wen of Han abolished the law of implicated punishment,and might have abolished the implicated punishment of the Penalty of Exile,which had a major impact on the function of the Penalty of Exile.It also caused the form of the Penalty of Exile in Han Dynasty to express as the Penalty of Exile named“Xi”.And the reason why the Penalty of Exile was affected had a great relationship with the purpose of the penalty itself.