略述清律的诸种同罪异罚及制订原则

“同罪异罚”刑法的适用对象以五服宗亲为主,兼及姻亲,然而大大超出这个范围,将具有拟制血亲关系、夫妻关系、师徒关系、主仆关系,以及具有两造关系的平民、官民都涵盖在内,成为清代,也是古代刑法的一大特色。同罪异罚的刑法量刑,固然是对具有同样罪行的两造,为尊长减刑,给卑幼加刑,事情尚不止此,如将那种量刑同凡斗的判刑作一比较,乃知加刑者重于凡斗,减刑者轻于凡斗,更表明这种原则和法律条文的确定,是为着维护宗族制度,尤其是宗族尊长制。同罪异罚是“准五服以制罪”法律原则的落实,是亲人之间服制不对等的产物,然而为何服制不对等?为何准五服以制罪?意识形态的理解,在于贯彻以孝道为核心的宗族伦理和以忠君之道为核心的等级名分观念,是宗法制和等级制、孝道和忠道伦理结合的产物,是“慎重伦常”,用以教忠教孝,实现“明刑弼教”,或者用康熙帝《圣谕十六条》的话说,是“讲法律以儆愚顽”。

On the Different Punishment with Same Crime and its Principle in Law of the Qing Dynasty

Different punishment with same crime(“Tong Zui Yi Fa”) was one characteristic in the criminal law of the Qing dynasty and also in other periods of ancient China.The criminal law was applicable to not only kinsmen or kinswomen but also to relations of fictitious blood,husband and wife,master and apprentice,master and slave,plebeians,and officers and plebeians who are involved as tow parties in a lawsuit.The same crime and different punishment,which reduced sentence to a senior and increased sentence to a junior,served to maintain the patriarchal clan system,especially patriarchal power and influence,and had fulfilled legal rules on the basis of the “system of five mourning in ancient China(System of Wu Fu).” Why did they give different punishment on the basis of the System of Wu Fu? In an ideological opinion,it was an instrument for maintaining patriarchal clan system and royalism of hierarchy system which advocated the ethics of loyalty and fidelity,integrating punishment with education,or,“admonishing the foolish by preaching law”,as Emperor Kangxi put it.