秦漢時代の恩赦と勞役刑--特に「復作」をめぐって

Abstract

Although the first amnesty for criminals within Qin territory was proclaimed in 250 BC, it did not become a custom to regularly grant amnesties. Shiji records only three general amnesties during the history of the Qin state and later dynasty. After the founding of the Han, amnesties came to be granted more frequently. So it would seem to follow that all convicts working at punitive labor were periodically freed from this status. However, that did not mean the reduction of the number of state laborers in the strict sense, because convicts did not become commoners even after amnesty. Rather, I argue that they were given fuzuo status, and still had to render service, as before. There is disagreement among scholars about the meaning of fuzuo. Though commentator Li Qi 李奇 and Hanjiuyi 漢舊儀 regarded it as a short term labor punishment, Meng Kang 孟康 interpreted fuzuo as referring to former labor convicts who had received an amnesty and yet still served as a sort of state laborers for the rest of their term. Analyzing the phrases in which fuzuo appears, we can see that fuzuo is linked with amnesty in many cases. In Shiji particularly there is a phrase ; "she tianxia, wu fuzuo 赦天下, 毋復作". It is difficult to interpret this phrase if we regard fuzuo as a type of short term punitive labor, because we cannot explain why this amnesty refers to it but not other, heavier punishments. Surely this phrase means to not make labor convicts fuzuo, a sort of state laborer, after the declaration of this amnesty. Meng Kang argued that fuzuo was the same as chixing 弛刑 namely, convicts whose iron collar or shackles had been removed. In contrast to this, modern scholar Zhang Jianguo 張建國 has pointed out the difference between fuzuo and chixing, suggesting that, while someone with fuzuo status was no longer a convict, those with chixing status were still convicts. But chixing status was sometimes distinguished from that of a convict, and fuzuo was not exactly the same as commoner status. I believe it was an intermediate status between convicts and commoners. An article in Ernian lüling 二年律令 tells us that liberated private slaves were given new status, called sishu 私屬 and they had to serve their master until the master's death. This regulation suggests the context in which fuzuo, an intermediate status like sishu, was produced, and implies that labor convicts were, at least originally, identified with imperial slaves. There existed fuzuo even before Emperor Wen's reform of the penal system, which set specific sentences for the various types of labor punishment. It follows that some hard labor convicts had to render endless service as fuzuo even after amnesty, though general amnesty was rare in the Qin period. This reflects that the penal labor system came from the system of state slavery, and convicts without specific term were not differentiated from slaves. The fuzuo system may seem irrational because it made amnesties meaningless to labor convicts. But on the other hand, amnesties would have caused serious problems to state manufacture if all convicts had been released and allowed to return home immediately. The amnesty system was used not only as a symbolic grace of emperor but also in a quite practical way, it meant that labor convicts were redeployed as state laborers following a new order, which the amnesty was supposed to create. In the punitive hard labor system before Emperor Wen's reform, it was difficult to totally release labor convicts. First, mutilated labor convicts were forced to continue in a particular status, yinguan 隱官 because of the permanent change to their appearance. Second, labor convicts were sometimes sold, and it was impossible to redeem all of them and return them home. We can interpret Emperor Wen's reform as an effort to make a labor convict completely free after serving a sentence of definite duration, periodically adjusting the number of state laborers.