慎刑思想的历史审视与当代提倡——兼论与域外谦抑理念的比较  

The Historical Review and Contemporary Advocacy of Cautious Punishment Idea Originated from the Western Zhou Dynasty——And a Comparison with the Foreign Concept of Modesty of Criminal Law

作　　者：詹奇玮 Zhan Qiwei

机构地区：[1]中国政法大学刑事司法学院

出　　处：《社会科学》2022年第6期178-191,共14页Journal of Social Sciences

摘　　要：慎刑思想滥觞于西周的“明德慎罚”,经过儒法两派的认可和深化,成为我国古代社会的主流法律思想。慎刑思想演绎的一系列刑法理念、刑制原则、审理机制和司法伦理,使其成为古代贯彻德法合治原则的典型体现、约束专制严苛统治的有力工具和推动传统法制繁荣的重要动力。慎刑思想伴随传统中华法系的消亡而式微,及至当下沦为域外谦抑理论的本土“注脚”,这既忽略了“谦抑”的本土适应性,也阻碍了“慎刑”的创造性转化。慎刑思想不仅有别于谦抑理念,而且其精神和立场更具辩证性和多样性。对于慎刑思想的正确定位,应当是契合本土文化传统且拥有丰富历史实践的,对于我国刑事法治具有全局性指导意义的优秀传统法律思想。在当代中国提倡慎刑思想,有助于消弭不同刑法观之间的分歧,确立刑法与道德的本土认识,推动刑法参与社会协同治理,强化制度和理论的本土表达,以及深化对司法人员的伦理建设。The idea of cautious punishment was originated in the Western Zhou Dynasty, which was recognized and deepened by Confucianism and Legalism, and was the mainstream legal thought in ancient Chinese society. A series of criminal law concepts, principles of penal system, trial mechanism and judicial ethics derived from the idea of cautious punishment have made it a typical embodiment of the implementation of the rule of morality and law in ancient times, a powerful tool to restrain autocratic and harsh rule and an important driving force for the prosperity of the Chinese legal system. The idea of cautious punishment had been declining along with the demise of the traditional Chinese legal system, and now it has been turned to a local “footnote” of the foreign concept of modesty of criminal law. This not only ignores the local adaptability of the concept of modesty of criminal law, but also hinders the creative transformation of the idea of cautious punishment. The idea of cautious punishment is unique to the concept of modesty of criminal law, and its spirit and position is more dialectical and diverse. The correct positioning of the idea of cautious punishment should be in line with China’s local cultural tradition and has a rich historical practice, for China’s criminal rule of law has the general guidance of the excellent traditional legal thinking. Promoting the idea of cautious punishment in contemporary China could help dissolve the differences between different views of criminal law, establish an indigenous understanding between criminal law and ethics, promote the participation of criminal law in collaborative social governance, strengthen the indigenous narratives of institutions and theories, and deepen the ethical construction of judicial personnel.

关 键 词：慎刑 谦抑 道德 中华法系 优秀传统法律思想 

分 类 号：D909.2[政治法律—法学理论]