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篇名
先秦儒、道、墨、法之倫理學簡介--並論各家對死刑之觀點
並列篇名
Introduction to the Ethics of Confucianism, the Taoist School, the Mohists, and the Legalist School in the Pre-Chin Dynasty Age - Comments on the Viewpoints of Death Penalty Given by Each School
作者 郭文雄
中文摘要
近年,死刑存廢是個大議題,本文試著從先秦諸子之倫理學為出發,來討論各家對死刑之存廢之看法,以期對上開問題,從傳統中國法律思想,作不同觀點的討論。本文將各家對死刑之觀點摘要如下:1、孔子主張以直報怨,以德報德。對待有怨仇者,就交給公正的法律吧!法律如何規定,即直接地反映法律的效果,所以法律中若有死刑的規定,那就正直地依法判決,此即「以直報怨」之意。2、荀子所主張人有教化的「可能性」;因此荀子認為要「先教後懲」,某甲明知殺人為非行,法律上要處死刑,竟然不受教化,明知而故犯,則此時刑罰所禁止者乃其殺人之暴行,懲罰者即某甲明知而故犯惡性,即死刑,對於那些違反教育內涵價值的人加以懲罰,亦具正當性。3、老子認為和大怨,必有餘怨,對重大犯罪而被論以死刑者,此時如果再調和以對,那民怨何以消之?4、墨子立說以興天下之利,除天下之害為宗旨。因此,對整体法秩序極端破壞者,沒有作為人的資格而存在,所以,對於前述之屠殺人命之人,這種濫殺之行為人,已喪失作為人的資格(非人),因此,對其處以死刑,只是除天下之害,並不是對人處以死刑。5、韓非認為對於犯死罪判決應被執行死刑者,並非「法治(國家法秩序)」殺(一般未犯罪的)人;「法治(國家法秩序)」所殺的人,是經「法治」判決之應被執行死刑的「應被執行死刑之人」。死刑之最終目的-「義期止殺」唐朝時之唐律,引儒家思想入律,其中有關死刑的部分「疏議曰:古先哲王,則天垂法,輔政助化,禁暴防姦,本欲生之,義期止殺。」死刑設置的目的,在告誡某人某事千萬不可為之,例如「殺人者,處死刑。」之律文,即告知某人不可殺人,否則會有剝奪生命的處罰發生,某人思及或懼怕刑罰之後果,則止住本欲為殺人之行為,此時即刑律「本欲生之」的真意;若某人果真不管律文之告誡而殺了人,法司只能如律處刑,按律執行,如此,不但可以確立人民法效力之確信,同時假有殺人動機者某甲,見及律法執行之確定性,因知若有殺人不能苟免於刑責,因此停止其殺某乙之計劃,如此不但遏止其殺人之行為,使某甲免罹於死刑之刑罰,同時保護某乙免於凶死,此即前文「終義期止殺」之真意。
英文摘要
In recent years, the reservation or abolition of capital punishment has become a vital issue. This study is trying to discuss the viewpoints of reservation and abolition of death penalty by each school based on the ethics of each school in pre-Chin Dynasty age, and by virtue of traditional Chinese lawful thoughts, we also discuss the above mentioned issue through different aspects. The abstract is as follows: 1. Confucius insisted on justice in return for injustice, good in return for good. If someone who thinks that it is injustice, then the argument is for fair law to decide. A lawful effect is directly to reflect what the stipulation is ruled by law. Therefore, if death sentence is ruled by law, then, it should be carried out by law righteously. It means justice in return for injustice. 2. That Xunzi insisted on the possibility of civilization to people. In view of this, he believed that punishing an offender who has been told what is the right thing to do and what is the wrong. A certain person is fully aware of killing is an illegal act, and the perpetrator must be sentenced to death. However, the offender is somewhat unexpected to accept the possibility of committing a crime intentionally. Meanwhile, the ban of punishment is the violent behavior of killing, the object of such punishment is certain person with intentional viciousness, it means capital crime. To punish those who violate the value of educational contents is proper. 3. Lao-tze believed that deep hatred still remains little hatred. If an offender who is decided to be executed death penalty and later tried to be lessened, then how to clear the grievance? 4. The purpose of Mo-tzu left worthy writings for the public interests and abolished the evil in the world. Therefore, the one who destroyed the lawful order is unable to be a person's capacity as existence. The foregoing murderer has lost his capacity to be as human being (a no person), so as to the offender who is sentenced to death is just like taking out of the evil for the world but it doesn't mean killing someone. 5. Han-Fei believed that the one who is sentenced to death and shall be a capital prisoner to be executed that is different from an innocent person who is killed by law; and the law allows to put someone to death meaning he is ought to be to put to death for justice. The end of capital sentence is to be expected a termination of killing. The laws of Tan Dynasty was applied and added to Confucius thought, and among capital sentences, Shu-Yi said that a wise ruler in the ancient age would imitate Heavens to promulgate law (regulations) and take advantage of assistance of political affairs and civilization and education to forbid violence and prevent wickedness. The goal of setting up death penalty is to tell certain people what has never been done, such as murders, and in the article of laws the murderer must be executed in front of the public to teach a lesson of never killing people, otherwise the punishment of life-deprivation would occur. Someone is fearful of death or its punishment, and once killing stops is the truthful meaning of 'originally to live a life in the law'. In case that someone who kills a person in despite of admonishment, the judge would have no choice but sentence him to death in accordance with the law. By doing so, it is not only to confirm with people the lawful effects, but also make a possible murderer without a motive of killing. See the firm of law-execution, and know that he cannot just walk free from the punishment if he kills someone, then he would stop his plan of killing someone. It makes him escape from capital sentence and stops his killing action, and on the other hand, it prevents the damage for someone from being murdered. This is the true meaning of 'finally a stop of killing' just as the aforementioned.
起訖頁 103-133
關鍵詞 先秦儒家道家墨家法家死刑Keywords:Pre-Chin DynastyConfucianismthe Taoist Schoolthe Mohists Schoolthe Legalist schooldeath penalty
刊名 軍法專刊  
期數 201504 (61:2期)
出版單位 軍法專刊社
該期刊-上一篇 公務員福利制度之法理與實務探討--從生育及喪葬補助談起
該期刊-下一篇 論行為規範及制裁規範與犯罪評價之論理關係(下)
 

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