【作者】 金大宝；

【导师】 朱勇；

【作者基本信息】 中国政法大学 ， 法律史， 2009， 博士

【摘要】 刑讯在中国古代也被称为“拷囚”,尽管在不同的历史时期,其称谓用语多有不同,但性质上并无二致。对于以高度发达著称于世的中国传统刑事法律制度来说,刑讯制度是其重要的组成部分,它体现了传统刑法的基本理念,对传统刑法文化的形成产生了重要的影响,因此,对古代刑讯问题的研究有助于对传统刑事法律制度和刑法文化的深刻把握,亦有助于深入了解中国传统司法的特性。刑讯制度的发展历史,就目前可信史料所见,秦汉时期就已经广泛地存在于司法活动中,但这一时期的刑讯只有若干原则,尚未形成系统性的制度;随后,魏晋南北朝时期,刑讯制度逐渐发展,出现了“测罚”、“测立”等制度;至隋唐时期,一套极为完备的刑讯制度体系最终形成;此后,宋元明清历代虽然在总体上继承了唐律的规定,但刑讯制度在这一时期并没有停滞,尤其是到了清代,刑讯制度的内容呈现了许多新的发展变化,包括:新的法定刑讯方式的增加、免于刑讯的对象范围的扩大、强调特定案件与特定刑讯方式相对应,等等;并且,州县司法官对刑讯问题的认识也大为深化,对刑具之制作与使用、刑讯方法与注意事项以及对非法刑讯的防范与制约等都给予了较多的关注。所有这些发展变化,使得清代的刑讯制度成为中国古代刑讯制度的成熟形态。清代刑讯制度的存在和发展,与此前刑讯制度的产生发展一样,有其特定的基础。就其思想观念基础来说,与此前历代并无大的差别,这是因为清代的法律制度仍是汉唐以来儒家化的法律制度的延续,支撑这一制度的法律思想和观念仍是一如前代。这些思想观念包括:父母官意识、慎刑思想、无讼观念,等等。但在刑讯制度的社会基础方面,清代则出现了新的变化,包括人口、经济、行政体制等在内的诸多因素导致了清代州县司法资源短缺的状况,这使得清代州县司法对刑讯制度的倚重大为增加。同时,由于清代州县司法中,州县官理讼断狱的整体水平较低,再加上胥役等消极因素的存在都使得州县司法中刑讯的使用有了一定的客观必然性。州县司法中合法刑讯的使用并不完全是负面意义的,它具有提高州县司法效率、法律预防等多种功能。正如此前历代一样,清代州县司法中,非法刑讯的存在也是不容否认的,但对于非法刑讯滥酷的程度到底如何这一问题,民间的印象和官方的表达之间却有较大的差距。通过清代案狱类的文学作品,我们不难看出,在民间的印象中,清代州县司法就是刑讯滥酷、冤狱丛生的代名词;但从清代有关官方文献资料的内容来看,非法刑讯又似乎只是例外。造成这一差异可能是由于民众对非法刑讯的态度、官方资料的局限性等因素的影响。对于州县司法中的非法刑讯问题,清代法律虽然规定了一整套的防范与惩处制度,但这并不足以杜绝清代州县司法中非法刑讯问题的存在。事实上,清代州县司法中非法刑讯的产生有多方面的原因,社会性的因素有:政治迫害的需要、官吏贪赃或徇私枉法等;心理方面的因素包括:嗜血心理、威权意识、贱民心理等;同时也包括制度设计本身的缺陷导致的若干因素。通过对晚清著名的杨乃武冤案的解析,可以直观地看到在清代州县司法中,非法刑讯是如何一步一步导致冤狱的,也可以清晰地看出州县司法中,州县官、仵作、讼师、胥役、旁证等各色人等在非法刑讯产生过程中所起到的推波助澜的作用。晚清时期,刑讯制度的合法性受到了前所未有的质疑。此后不久,随着清末变法修律的逐次展开,废止刑讯的努力也付诸实施,除了命盗重案外一概禁止刑讯;但刑讯在法理上的彻底废止则是在民国初年南京临时政府时期。清末刑讯制度的废止在州县司法实践中收效甚微,这是因为这一时期中国社会的基本面并没有实质性的改变,刑讯制度赖以存在的社会基础依然如故,所以,制度上的废止并没有带来期望中的良效。更多还原

【Abstract】 The torture was also called beating imprisons. Although it has different forms of address in the different age, yet the meanings of them are all same. The high-developed traditional penal system of China is very famous in the world, yet the torture system is a very important part of it. The torture contains the basic idea of the traditional criminal law, and is a great contribution to the form of the culture of traditional criminal law. And thus, researching into the torture of the past ages helps to understanding the traditional penal system and the culture of traditional criminal law, and knowing about the characters of the traditional justice of China.The torture, according to the credible historical material, was popularly used in the Justice during the Qin and Han Dynasty. Yet, it just had certain principles, but not a system at that time. And then, at Wei Jin Southern and Northern Dynasties time, the torture developed much better, and the systems appeared, such as“CeFa”、“CeLi”. To Sui and Tang dynasties, a complete system of torture centered on the flogging was formulated finally. After that, the rules of the law in Tang dynasties were inherited by the Song, Yuan, Ming, and Qing Dynasties as a whole, yet the torture did not get bogged down. Especially to the Qing Dynasty, the torture had some new changes, including: new additional legal ways of torture, the larger scope of remitted in the torture system, the emphasis of coordination between certain cases and certain ways of the torture and so on. Moreover, the theory about the question of the torture became much deeper, such as, the manufacture and the use of the torture instruments, the ways of the torture and the matters needing attention, the prevention and the restriction to the illegal torture. All of the contents made the torture system seem much more complete, and represented a mature shape of the traditional torture system.The same as the formation and development of the former torture, the existence and the development of the torture system of the Qing Dynasty also had its specific foundation. Take its foundation of ideological concept as an example, they were nearly same compared with all previous dynasties. This was because the law system of the Qing Dynasty inherited the law system based on the Confucianism since Han and Tang Dynasty. The thought and concept which supported the law system were the same as the previous dynasties. The thought and concept included the consciousness of benevolent official, cautious punishment, the idea of no disputes and so on. As the new change in the aspects of the population, economy, administrative system, the condition of the lack of the Justice resource of the County Magistrates in the Qing Dynasty came out relatively. That made the Justice of the County Magistrates in the Qing Dynasty lean on the torture increasingly. At the same time, because of the low ability of the officials of the State &County in the Justice of the County Magistrates in the Qing Dynasty and other negative reasons such as XuYi, inquisition by torture was used in the Justice of the County Magistrates in the Qing Dynasty accordingly. The use of legal torture in the Justice of the County Magistrates was not negative at all. It had a lot of function, e.g. raising the efficiency of the Justice of the County Magistrates, legal prevention and so on.As the previous dynasties, the existence of illegal torture could not be denied in the Justice of the County Magistrates in the Qing Dynasty. But over the degree of illegal torture, there were much dispute between the folk impression and the official expression. Through the literary works about the ancient times cases, it’s easy to find that the Justice of the County Magistrates in the Qing Dynasty was equal to the torture, and the unjust charge the folk impression. But in the official literary materials, the torture just happened by accident. Maybe the differences came from the folk repellence to the illegal torture subjectively. Regarding the illegal torture in the Justice of the County Magistrates, the law of Qing Dynasty made a system of prevention and punishment, e.g. prevention before happening, surveillance in the course, and punishment after happening. However, these were not enough to stop the problems of the illegal torture in the Justice of the County Magistrates in the Qing Dynasty. Actually, there were many reasons for the existence of the illegal torture in the Justice of the County Magistrates in the Qing Dynasty, e.g. the need of the political persecution, official corruption, or distorting the law and Practicing favoritism. The reasons of psychology included: sanguinities, the consciousness of authority, the idea of outcaste and the flaw of the system itself and so on. Through the analysis of the famous case of YangNaiwu in the Latter Qing Dynasty, we can recognize how the illegal torture in the Justice of the County Magistrates led to the unjust charge directly, and can see the function of adding fuel to the flames of the officials, medical examiner, lawyer, XuYi, witnesses while the illegal torture was produced.In the latter Qing Dynasty, under the influence of modern western legal thought, the validity of the torture was questioned unprecedentedly. After that, as the political reform and law repairing proceeding step by step, the reform of the torture system began to implement. The scope of the torture was limited in the homicide case and burglary case. During the early time of the Republic of China, The NanKing temporary government tried its best to abolish the torture officially. However, the abolishment of the inquisition by torture got little effect in the Justice practice during the latter Qing Dynasty ,because the social foundation on which the inquisition by torture based was all the same. So, the abolishment of the system did not bring the expected good effect. About that point, you can get a vivid understanding from the course of abolishment of the torture in the occident and the orient and the comparative research to the different effect.更多还原