秦代“城旦舂”考辨——兼论秦律的一些特点  

A Study on Qin Dynasty's“Cheng Dan Chong”Along with the Discussion on the Unique Characteristics of the Qin's Law

作　　者：张新超[1] 

机构地区：[1]南开大学历史学院,博士研究生天津300071

出　　处：《史学月刊》2014年第10期24-34,78,共12页Journal of Historical Science

摘　　要：秦代的"城旦舂"有两种含义:一指某一级刑罚,二指某一类罪犯。作为刑罚的"城旦舂"包括"刑城旦舂"和"完城旦舂"两大类型。其中"刑城旦舂"分为"黥为城旦舂"和"斩为城旦舂"两等,"黥劓城旦舂"和"斩黥城旦舂"则属于加刑。不存在"耐城旦舂"刑。作为罪犯的"城旦舂"可分为"城旦"和"舂"两大类型。其中"城旦"可分为"小城旦"、"仗城旦"和"城旦";"舂"可分为"小舂"和"舂"。在从事普通劳役时,"城旦舂"和其他罪犯混合在一起劳作;当从事有一定技能要求的劳役时,技能因素是第一位的,性别、年龄、刑等诸因素则是次要的。劳役的轻重并不是衡量刑罚轻重的可靠标准。秦代的"城旦舂"还有收没妻、子和受其他判罚较轻罪犯监管等重要的附加惩罚措施,这些措施是"城旦舂"区别于其他罪犯的重要标志。"城旦舂"的上述特点在某种程度上也是秦代刑罚的特点。＂Cheng dan chong＂ in the Qin Dynasty had two definitions; one refers to a level of punishment, the other refers to a kind of criminal. Cheng dan chong as a level of punishment included two genres., xing cheng dan chong and wan cheng dan chong. Xing cheng dan chong could be further distinguished into qing wei cheng dan chong and zhan wei cheng dan chong. Qing yi cheng dan chong and zhan qing cheng dan chong, on the other hand, belonged to the category of increased penalty. ＂Nai cheng dan chong＂ did not exist. Cheng dan chong as a kind of criminal could be distinguished into two main types, chen dan and chong. Cheng dan can be distinguished into xiao cheng dan, zhang cheng dan and cheng dan while chong could be distinguished into xiao chong and chong. Cheng dan chong and other criminals were mingled together when they served their forced labour. When the forced labour had certain skills requirement,the skills factor was the top priority while other factors such as gender, age and punishment came secondary. The intensity of forced labour was not a reliable frame of reference to measure the weight of punishment. The Qin dynasty＇s cheng dan chong also had other important added penalty measures such as having one＇s wife and child confiscated and to be supervised by other criminals who had to serve a comparatively lighter sentence. These measures were important distinguishing marks that differentiated cheng dan chong from other criminals. To a certain degree,the above-mentioned unique characteristics of cheng dan chong were also the unique charcteristics of the Qin dynasty＇ s penalty.

关 键 词：秦代 城旦舂 刑等 秦律 附加惩罚措施 

分 类 号：D929[政治法律—法学] K232[历史地理—历史学] D924.12[历史地理—中国史]