遭遇替身：代人受刑現象的歷史析論

Encountering 'Scapegoat' : A Historical Analysis on Phenomenon of Replacing Punishment

代人受刑現象在中國古代較為普遍。根據其發生的不同動因，替身代刑可有經濟考量類、倫理考量類和政治考量類。從歷代的官方態度和法律規制來看，除極少數代刑獲得特定許可外，禁止代刑是當然的法律精神，並通過詔令、條例等表現出來。從司法境遇來看，司法官的腐敗或賢明，直接決定著代人受刑的作法能否得逞，而肩負天命的君王更傾向於對其進行打擊。從種類特點、情法衝突、專制根源、本性身體、司法惰性與倫理審判等不同方面進行評析，可以深化我們對代人受刑現象的認識及從中獲得啟示和鏡鑑。There was a common phenomenon of replacing punishment in ancient China. According to the various motivations, it could be divided into three kinds that based on economic considerations, ethical considerations, and political considerations respectively. From the view of official attitude and laws, prohibition on the replacing punishment became the law's spirits except for a few specific permissions, and was displayed by imperial edicts, regulations and other ways. Under the judicial environment, judicial corruption determined directly whether the phenomenon of scapegoat took place, while emperors who shouldered the destiny tended to strike it. Based on the above analysis, this paper makes some evaluations about the complex sorts of replacing punishment, conflict between emotion and law, its autocratic origin and nature body, and judicial inertia of and ethical judgment on it.