元朝の法制における人命賠償 : 燒埋銀と私和錢について

Abstract

Under the customary law of the pre-dynastic Mongols there was undoubtedly the practice of a kind of "wergild, " the price to be paid by the kindred of a manslaughter to the kindred of the slain person as we find in Anglo-Saxon and Germanic law. When the Mongols conquered China, they introduced the wergild system there and put it into their legal system in the form of "shao-mai-ch'ien (燒埋錢)." However, it was not that the Mongol conquerors forced and compelled the conquered Chinese to pay wergild in case of murder or manslaughter, paying regard neither to tradional Chinese statute law nor to their customary law, because the Chinese themselves had the practice of paying "ssu-ho-ch'ien(私和錢), " though it was illegal. In the author's view, under the Mongol-Yuan dynasty various systems of law coexisted side by side, e.g., one for the Mongols, another for the Muslims, yet another for the Chinese, etc. The law books of the Yuan dynasty such as the Section of Law in the Yuan-shih (元史), the Yuan-tien-ch'ang (元典章) and the T'ung-chih-t'iao-ko (通制條格) contain laws, regulations and judiciary decisions principally for the Chinese but not for the other peoples resident in China. Personal jurisdiction was a legal principle held by the Mongol conquerors.