中国古代的罪疑惟轻
蒋铁初中国古代的罪疑惟轻
Lenient Treatment of Doubtful Guilt in Ancient China
期刊名称：《法学研究》
期刊年份：
作者：蒋铁初
单位：浙江财经学院法学院
中文关键词：罪疑惟轻;《尚书·大禹谟》;中庸;有罪必罚
英文关键词：lenient treatment of doubtful guilt;project of grand Yu;thinking mode of moderation;ensure the offenders to be punished
中文摘要：
“罪疑惟轻”是中国古代疑罪处理的代表性观点。它主张当犯罪事实不能确定时，对嫌疑人从轻处罚。“罪疑惟轻”的观点是对司法实践中疑罪从轻的认可，与传统法律文化中的中庸思维、有罪必罚等观念有着密不可分的关系，对古代疑罪处理的模式和司法官员的疑罪处理观念产生了深远的影响。
英文摘要：
As a representative idea of ancient China in settling criminal cases without clear facts raised by some people in the Jin Dynasty as they were fabricating the classical, the doctrine of lenient treatment of doubtful guilt argued that the suspects whose criminal facts had not been proved should be punished more leniently than the criminal facts were proved. Ideation of this doctrine was based on the acknowledgment to the familiar judicial practice tracing back to the Han Dynasty of lenient punishment to the uncertain guilt, and was connected with the traditional thinking mode of moderation and the idea of ensuring the offenders to be punished. The thinking mode of moderation requires balancing the interests of both the accused and informer, and thus requires a moderate judicature. Being endowed with significance of prudent penalty and lenient justice by the creator and the subsequent interpreters, the doctrine succeeded in being recognized by the legislators and the judiciary in the period of Confucian rule of law. As a result, the importance of the doctrine of lenient treatment of doubtful guilt was strengthened by the status of legal tradition, which can be seen from the fact that the only choice in dealing with the criminal cases with unclear facts was lenience, according to the legislation of Jin and the afterword dynasties, the fact that the regulations of Ming’s and Qing’s dynasties adhered to the doctrine of lenient treatment of doubtful guilt which had been abrogated by the criminal codes, and the fact that the judicial officers were so deeply influenced by the doctrine in judicial practice that they were inclined to unhesitatingly choose the lenient attitude when the criminal facts could not be proved, with the result of more or less unjust penalty to the innocence or misdemeanor.
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