“少捕慎诉慎押”刑事司法政策中的“颂系”法律文化传统

The Legal Cultural Tradition of"Song Xi"in the Policy of Making Fewer Arrests,Initiating Less Prosecution and Detaining Fewer Suspects with Prudence and Leniency

“颂系”法律文化传统是传统德治观念引导刑事强制措施的结果。其起于汉初,盛于唐宋,延至明清,既表现为通过对涉罪轻重、官贵身份、生理弱势等因素的权衡,构建出宽严有等的强制措施规范制度;也表现为对“个人利益-农本经济-社会秩序-政权稳定”递进逻辑的思量,做出因时施恩的诏令。这一历史现象背后,是古人在强制措施适用上慎刑的体现,也是古人在面对矛盾交错、灾异多发时,加强德治观念在强制措施领域的渗透以追求社会实效的思维体现。该传统影响至今,表现为法治与德治相结合下的“少捕慎诉慎押”刑事司法政策,并为强制措施司法实践提供了中国智慧和历史警示。

The legal cultural tradition of"Song Xi"is the result of criminal coercive measures guided by the tradition-al rule of virtue.It began in the early Han Dynasty,flourished in the Tang and Song dynasties,and extended to the Ming and Qing Dynasties.It is manifested in the construction of lenient and equal coercive measures and standard system,through the weighing of the severity of the crime involved,the status of officials and dignitaries,physiological weakness and other factors.It is also manifested as an edict to grant mercy in due course,through thinking about the progressive logic of"individual interests-agricultural economy-social order-political stability".Behind this historical phenomenon is the reflec-tion of the ancient people's concept of cautious penalty in the application of coercive measures,as well as the reflection of the ancient people's thinking of strengthening the penetration of rule of virtue in the field of coercive measures in order to pursue actual social effects in the face of staggered conflicts and frequent disasters.The influence of this tradition continues to this day.It manifests itself in the policy of the criminal justice policy of making fewer arrests,initiating less prosecution and detaining fewer suspects with prudence and leniency formed under the combination of rule of law and rule of virtue.It also provides Chinese wisdom and historical warning for the judicial practice of coercive measures.