黃源盛

中文摘要

Scalia傳統中國的法理思想與法律規範，向有因犯罪情狀而得減輕 刑罰的理念與實際。而為了因應案情的懸殊，在司法實踐面乃出 現「原情定罪」的審判原則，以清代「秋審」制來說，監候秋審 的案件按其所犯性質、情節，區分成情實、緩決、可矜、可疑、 留養承嗣等五類，其中「可矜」者，乃罪名屬實，但情有可原， 可免死減等。 時至今日，我國現行刑法第59 條規定：「犯罪之情狀顯可憫 恕，認科以最低度刑仍嫌過重者，得酌量減輕其刑。」被稱為 「法官之淚」的這條規範溯源何自？與傳統中國法制有無關聯？ 清末民初繼受歐陸刑法以來，原情定罪的審判原則有何衍化？ 如 何落實到刑事立法與司法實踐當中？它的歷史價值與時代意義各為何？凡此諸問，很值得探究，乃趁著擁有珍稀立法史料與裁判文書之便，本文從法史學的觀點，以民初大理院（1912-1928）的相關判例為軸心，旁及立法經緯及當代刑法，逐一細說，以明「原情定罪原則」深刻的傳統價值與時代意義。

A Punishment from Being Pitiable to Being Reduced at Discretion -The Principle of Yuan Qing Din Zui on the Basis of Legal Cases of the Dali Yuan in Early Republican China

Yuan-Sheng Huang

abstract

In traditional China, the thought and practice of the law whichconsider to reduce the sentence of punishment according to different circumstances of crime always consist in jurisprudence and legalsystem. In order to balance the crime and the guilty of cases, the principle of “Yuan Qing Din Zui”（原情定罪） was used in thejudicial practice. For example, in Qing Dynasty, a person who be sentenced to death penalty would be determined to be executed ornot by a judicial procedure which is called “Autumn Review”（秋 審）. According to the circumstances, the conclusion of the AutumnReview trial was divided to five categories: actual reality, suspension, compassion, doubt, and put a defendant to probation andlet him to take care his parents. Among these categories, a defendant could be reduced the sentence of punishment if he was sentenced tothe “compassion” .Today, the article 59 of the Criminal Code in Taiwan concerning “A punishment may be reduced at discretion if the circumstances ofthe commission of the offense are so pitiable that even the minimum punishment is considered too severe” be called” the judge’s tears.” In addition, this paper tries to explore the following points: What is thesource of the article 59 in Taiwan? Is it related to the law in traditional China? What is the change of “Yuan Qing Din Zui” during the period of time from late Qing Dynasty to early RepublicanChina? and, how is this principle be practiced by legislation or judiciary? Further, the object of this article tries to illustrate thetraditional values and the significance of the principle of “Yuan Qing Din Zui” on the basis of legal cases of “Dali Yuan”（大理院）(1912-1928) and legislative archives, especially from the viewpoint of the history of criminal law.