论古代肉刑存废之争

Dicussion of Abolishment and Existance of Ancient Corporal Punishment

汉文帝废除肉刑而后世非议者多,究其原因有二:一是废除肉刑后,斩右趾者弃市,生刑入死刑,故被认为是徒有轻刑之名,而有重刑之实;二是在徒刑与死刑之间没有中间刑,导致刑制本身的不合理。新五刑的出现,流刑成了正式刑种,解决了刑制轻重不当的问题,恢复肉刑的声音也就日见微弱了。

There were much reproaches on abolishment of the corporal punishment by Wen Emperor in Han Dynasty .The reasons lie in two :one was that after the abolishment of the corporal punishment the criminals were cut in the right feet or even executed in public,and the previous alive penalty was turned into the death penalty, which was actually the severe sentence rather than the former minor sentence;the other was that there was no middle sentence between death penalty and imprisonment,which led to the irrationality of the punishment system.With the New Five Sentences—flog,cane,imprisonment ,banish, death penalty-into existance, the punishment of banishment became one of the formal penalty ,which added to the rationality of the punishment system. As a result ,the voice for the corporal punishment weakened along with the time.