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关于刑罚的起源问题,是历史研究中的一个重要课题。学术界流行着一种观点,认为刑罚起源于战争,在氏族社会晚期,用战争手段杀戮敌人、惩罚战俘和被征服者,即是刑罚的最早施用,后来才用刑罚惩处氏族部落内部成员,并将此视为中国法制起源的一大特点,称之为“刑起于兵”或“刑出于兵”。笔者认为,这一观点是对古文献资料的误解所致,且不符合法制起源的历史实际,很有商讨之必要。
The issue of the origin of punishment is an important issue in historical research. There is a popular view in academia that the penalty originated in the war. In the late clan society, killing the enemy by means of war and punishing the prisoners of war and the conquered persons was the earliest application of the penalty. Later, the members of the clan tribe were punished with penalties This is regarded as a major feature of the origin of the Chinese legal system, calling it “punishment from the soldier” or “punishment from the soldier.” The author believes that this view is due to the misunderstanding of ancient literature, and does not meet the legal history of the historical reality, it is necessary to discuss.