《吕刑》在中国法律史上的地位与影响  

Position and Impact of Lv Xing in Chinese Legal History

作　　者：梁凤荣[1] 

机构地区：[1]郑州大学法学院教授

出　　处：《法学研究》2009年第1期166-177,共12页Chinese Journal of Law

摘　　要：《吕刑》所反映的德刑并举治国思维及刑法制度与原则,直接或间接地影响着后世刑法的构建。在法律思想方面,后世社会的明刑弼教、乱世重典及贤人执法理念与《吕刑》有渊源关系,在法律制度,古老的五刑、五听与赎刑也是后世同类制度的嚆矢。《吕刑》中关于上下比罪、简孚有众、其刑上备等定罪量刑原则又分别成为后世的类推、据众证定罪及重罪吸收轻罪等制度的示范。According to existing historical literatures, Lv Xing of the West--Zhou Dynasty is the oldest criminal code of our country. The thoughts, systems and principles reflected in Lv Xing provide for us dependable sources to research on the legislation of the West--Zhou Dynasty, and have direct or indirect impact on the criminal law of later dynasties. According to Lv Xing, moral education and criminal punishment were both necessary to govern countries, and criminal punishment could also avail moral education. On the other hand, governors should apply different systems of criminal punishment according to different demands. When social contradictions are acute, heavy punishment should be applied, and when social contradictions are abated, light one should be applied. Moreover, governors should select wisdoms for law enforcement. As to legal systems, Lv Xing established formally five kinds of punishment, which were the trunk of punishment system. These kinds of punishment were mainly against body, though their sphere of application was more and more limited in later dynasties, they were held on throughout the whole feudal societies. Lv Xing explained also the trial system, that is, facts should be deter- mined by inference from the words, expression, air and so on of witnesses and the accused. According to Lv Xing, one could be exempted from punishment by paying some money to the governor. These systems have also been inherited by later dynasties. Furthermore, the convicting and sentencing principles of analogy and join of punishments for plural crimes sprouted also from Lv Xing. If there were not express provision concerning the spe- cific criminal act, existing analogous provision could be applied for conviction and sentence. If one person committed two or more crimes, he should be convicted and sentenced according to the heavy crime.

关 键 词：《吕刑》 德刑并举 中国刑法史 五刑五听 

分 类 号：D929.2[政治法律—法学]