『大清刑律』から『暫行新刑律』へ--中國における近代的刑法の制定過程について

Abstract

In the 20th century the Qing dynasty began a series of reforms aimed at establishing a constitutional government, and among them was an attempt to organize a modern legal system. The Da Qing Criminal Code 大清刑律, which was prepared in this process, was put into practice as the Temporary Criminal Code 暫行新刑律 by the Republic of China. This study elucidates that procedural problems that sprang up between the Constitutional Commission 憲政編査館 and the Political Advisory Board 資政院 in the course of their deliberations. The draft plan for the new criminal code was composed by the Japanese consultant Okada Asataro 岡田朝太郎 and was presented to the thrown by Shen Jiaben 沈家本. In regard to this draft, a compromise was devised, adding five articles from the former criminal code concerning crimes involving matters of ethics, lijiao 禮教, because opposition to the draft was expressed by one senior local official after another. The draft was next considered by the Constitutional Commission, where it was criticized by Lao Naixuan 勞乃宣, but his objections were rejected in deliberations; the five amendments were attached as temporary articles 暫行章程, in a somewhat watered-down form to the draft of the new criminal code. The draft was next considered by the Political Advisory Board, the forerunner of the national assembly. The temporary articles of the code having first been turned down in deliberations, in terms of general provisions 總則 they were passed during deliberations, but because Lao Naixuan's position on the adultery issue was accepted, the faction advocating the new criminal code refused to deliberate further, and deliberations were broken off on the specific provisions 分則. However, as this result caused dissatisfaction in the Constitutional Commission, and the Commission acting on its own decided to report the original plan to the throne and promulgate it. In response, the faction promoting the new criminal code in the Political Advisory Board centering on Wang Rongbao 汪榮寳 opposed it on the grounds that it ignored the legislative right of the Political Advisory Board, and as a result of the debate, deliberations on general provisions were concluded, and it was reported to the throne as a joint report of the Political Advisory Board and the Constitutional Commission and promulgated as the Da Qing Criminal Code. With the establishment of the Republic of China, the interim government in Beijing decided to provisionally adopt the Da Qing Criminal Code while eliminating its provisional articles. With this decision, the promulgation of the new criminal code for the Qing dynasty was a fait accompli, becoming a legal precedent. Additionally, the interim Canyiyuan 參議院 in Nanjing made a similar determination, and the Temporary Criminal Code was put into effect.