中国古代的代亲受刑现象探析
方潇中国古代的代亲受刑现象探析
Replacing the Relatives to be Punished in Ancient China
期刊名称：《法学研究》
期刊年份：
作者：方潇
单位：苏州大学王健法学院
中文关键词：代亲受刑;孝悌伦情;情法之辩
英文关键词：replacing the relatives to be punished;filial piety and fraternal love;argument of sentiments and law
中文摘要：
中国古代司法活动中存在一种普遍性的代亲受刑现象。有代父、代母、代兄、代弟、代夫等种类，呈现以纵向长辈、横向男性为主要被代者的特点。其原因主要是孝悌义等伦情的推动，也不排除名利追逐、礼法所累等次因。代亲受刑并未在基本律典里规定，现实生活中多以诏令等形式灵活处理。这种状态为统治者是否允许适用代刑留下空间，导致了君臣之间、臣子之间的诸多争辩。代刑请求中的言行技巧也往往是成功与否的关键。为解决许可代刑出现的复仇问题，国家以移乡避仇、经济赔偿及禁止复仇等措施应对。孔子对直躬案的评价是代亲受刑受到儒学推崇的思想源头。虽然代亲受刑有破坏法制施行之嫌，但反对敌不过许可，法理敌不过情理，这种现象最终还是无法避免。
英文摘要：
There was a common phenomenon of replacing the relatives to be punished in the judicial activity of ancient China. There were such kinds as replacing father, mother, elder brother, younger brother, husband, etc., showing the characteristics that the elders and men were mainly replaced. The main reason of the request to replace the relatives to be punished was the promotion of filial piety, righteousness, fraternal love, etc., also included the secondary cause of chasing fame and oppressed by morality. Although it's common, the phenomenon of replacing the relatives to be punished was not framed by the basic laws in ancient China. In most cases, it was handled flexibly in the form of order issued by the ruler, which provided the ruler with great chances to decide whether to execute the replacement or not, and led to many arguments between the ruler and his courtiers, also among the courtiers. Although such arguments played a decisive role, the way to request was also very important. The key to success was often the skills of words and deeds in the request. Generally speaking, there were several skills that could make the request succeed such as having both reason and filial piety, blending the sentiments and legal principle, catching the time and space, smiling in the face, etc.In order to avoid revenge that might occur owing to the permission of the replacement, rulers had to take measures such as the order of migration and financial compensation and the injunction to revenge. By those measures, not only the ruler realized his purpose of controlling the people, but also the victims' sentiments of revenge could be dissolved or held back to the largest extent.The evaluation of the Confucian on the case of Zhigong was the ideological source of replacing the relatives to be punished respected by the Confucian. Although it was almost in a dilemma for the law enforcement, the replacement was unable to be avoided because the opposition cannot win the permission, and the legal principle cannot win the moral principle.
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