秦律所见耐刑可作主刑辩

The Argument on the "Naixing" as Principal Punishment in the Laws of the Qin Dynasty

在秦律中,耐刑作为一种能够赎免的耻辱刑,不仅可以附加于各类劳役刑与迁刑,还可独立为主刑施用。在施用范围上,耐刑并不局限于社会环境,家庭内部的"私刑"亦可引起此刑的单独施用,这是它与其它刑罚有所不同的地方。在刑罚转化方面,某些情况下耐刑并非对某一类行为的固定刑,它可随行为过错性大小与行为人身份的不同而由它刑加重或从轻转化为本刑。

In the laws of the Qin Dynasty, as a redeemable humiliating punishment, the “naixing (shaving the face to remove eyebrows and beards)”could not only be used as accessory punishment of the penal labor and exile punishments but also be used as a principal punishment. In the application scope, the“naixing”was not restricted in the social scenario but also could be used as the private punishment within the families, which is the difference of“naixing”from other punishments. In some cases, the“naixing”was not a ifxed punishment to certain type of crimes and could be changed into a principal punishment as the increasing or decreasing of the punishments according to the severeness of the crimes and the statuses of the criminals.