秦及汉初逃亡犯罪的刑罚适用和处理程序

秦及汉初律令对逃亡犯罪的规定繁复而成体系。逃亡大体可分为一般逃亡和犯罪后逃亡二类。在刑罚适用上,一般逃亡的刑罚因逃亡者身份不同而各异,犯罪逃亡的刑罚是以本罪刑罚为基础,叠加亡罪刑罚后加以确定。在处理程序上,吏、民的一般逃亡不导致审判和追缉程序,刑徒或特别身份人逃亡的,区分亡罪刑罚轻重,分别适用审判并通缉的“论,命之”程序和审判并命令其出现、领受刑罚的“论,令出、会之”程序。犯罪逃亡的,以本罪刑罚为基准,分别适用“论,命之”和“论,令出、会之”程序,后一程序中未按规定领受刑罚的,以刑罚已执行时逃亡来论断其刑。在不同类型逃亡犯罪及司法程序的不同阶段自出的,有处以笞刑、本罪之刑减一等或本罪之刑叠加亡罪之刑后总减一等等不同减刑效果。

Application of Punishments for Absconding Crimes and Related Procedures in the Qin and Early Han Dynasties

The legal provisions on crimes relating to absconding during Qin and early Han dynasties were complicated and systematic.With respect to the application of criminal punishment,the punishment for simple absconding crimes was different for absconders of different status.The punishment for absconding after committing a crime is comprised of both punishment for the principal crime and the punishment for absconding.With respect to procedures,simple absconding crimes committed by officials or ordinary persons were generally not followed by a trial and a manhunt procedure;absconding crimes committed by convicts or persons with special status were followed by two different trial and manhunt procedures in light of the severity of the crimes,namely“sentencing and certifying it”and“sentencing and ordering criminals to surrender themselves and accept punishments”.As to absconding after committing crimes,either one of the aforesaid two procedures could be applied in light of the punishment for the principal crime.In the procedure of“sentencing and ordering the criminals to surrender themselves and accept punishments”,if criminals failed to come forward to accept the punishments,their punishments should be determined by assuming that they absconded after receiving the original punishments.Surrendering at different stages of judicial procedure in different kinds of absconding cases could lead to different reduction of punishment,including caning,reducing the punishment of the crime by one degree,and reducing by one degree the final punishment comprising of both the punishment for the principal crime and the punishment for absconding.