汉初的刑罚体系

汉初的刑罚体系是文景刑制改革的基础,由“笞”、“罚”和作为正“刑”的各种肉刑、死刑组成。肉刑一般不单独运用,往往“刑尽”后,又罚使劳役。这样形成一个从轻到重,从生到死,相互衔接,有等次的刑罚统一体。过误、特殊的犯罪主体以及轻罪,适用“罚金”、“赎刑”。故意、重罪适用劳役、肉刑,直到死刑。文景改革以后,笞刑取代肉刑,劳役由无期变为有期。此外,汉初刑罚体系明显受先秦刑罚思想的影响,刑罚被视为对犯罪者的“报复”,有强烈的特殊预防和一般预防的色彩。

System of Punishment in the Early Han Dynasty

The system of punishment in the early Han dynasty was the foundation of Wen Jing reform on punishment. This system was composed of knout, penalty and several kinds of corporal punishment and death penalty. Generally, the corporal punishment was not applied singly, but with penal servitude. Therefore, it established a gradational entia of punishment, from lesser punishment to heavier punishment, from living to death. Negligent offender, special offender and minor offender is punished with fine or ransom. Intentional offender and felony is punished with penal servitude, corporal punishment and death penalty. After the Wen Jing reform, the knout replaced the corporal punishment, and penal servitude changed from dateless to terminable. The system of punishment in the early Han dynasty was influenced from the punishment ideas of pre-Qin dynasty. The punishment was regarded as retaliation which means special prevention and general prevention.