杀人者死是我国古代刑事立法与司法的基本原则。但很多情况下,杀人由于不具有实质违法性而不被认为是犯罪。在国家层面,政治治理、司法刑讯、捕盗、决罚中的杀人未必有罪;在家族层面,宗族执法、家长教令、部分尊长对卑幼的过失杀害中的杀人未必有罪;在个人层面,个人为国家利益而采取的正当防卫、私人捕系,为宗族利益采取的复仇、维护尊长的正当防卫、家庭安全与财产的防卫,以及为个人利益的杀奸、杀婴、人相食等中的杀人未必有罪。从人命价值发展趋势来看,人命渐重;人命至重在古代是伪命题。受公私观念的影响,人命在国家及宗族利益之下,私要服从公;而宗族利益在与国家利益不绝对违背的情况下有一定存在空间,公对私又有所妥协。 Killing death is the basic principle of ancient criminal legislation and judicature in our country. In many cases, however, murder is not considered a crime because it does not have material illegality. At the national level, homicides in political governance, judicial torture, theft and punishment are not necessarily guilty; at the family level, the execution of clans, parental orders, and some elders are not necessarily guilty of homicide in the lives of homicidal children; at the individual level, individuals For the sake of national interests, proper defense, private capture, revenge for the sake of the clan, legitimate defense of elders, home security and property defense, as well as for personal interests such as murder, infanticide, human food etc Murder may not be guilty. From the perspective of the development trend of human values, human life is getting heavier; human life is a pseudo-proposition in ancient times. Affected by the concept of public and private life, human life is subject to the interests of the state and the clan, and subject to public interests. However, the interests of the clan have room for existence in the event that they are not absolutely against their national interests, and the public and the private have to compromise.