儀禮と刑罰のはざま--賄賂罪の變遷

Abstract

The crimes of bribery and corruption were proscribed in the statutes on Administrative Regulation in the Tang Code. Concerning taking illicit goods, there are some provisions in the Han Code as well, which belong to the Statutes on Robbery. They were assumed to correspond to stealing in the Han period. And though the law conceived of it as an officer's crime, the crime was not a status specific offense in the full sense. The conditions and features of the crime of bribery changed in the time from Han to Tang to confirm its character as an officer's crime, and the deed without further malfeasance came to be punished under the Tang Code. The reason why the crime of bribery changed should be attributed to the change of administrative as well as criminal policies leading up to the Tang period. The first transition happened in the Cao Wei period, when the proscriptions against bribery moved to the Statute on Seeking Favors (請賕律) with other administrative regulations. This means the law changed so that the crime of bribery came into the category of corruption by government officials. Law in the Bei Wei period dictated and amplified this current. When Bei Wei established its empire in North China, there had not been a system for official salaries in the administration. In 484 AD, Xiao Wen Di (孝文帝) enacted salaries for government officers. This new institution was intended for the prevention of increasing bribery in Bei Wei. However the policy made the punishment for bribery extremely severe, to the extent of applying the death penalty for all bribery, irrespective of the amount of the bribe. The conditions of the crime of bribery in the Bei Wei Code came to be totally different from these the Han Code. It is obvious that the Tang Code succeeded the Bei Wei as well as the Bei Zhou Code. As for the prescriptions concerning bribery and corruption, it seems correct to assume that the Tang Code was amended and adjusted from the harshness and immaturity of the Bei Wei. If it had not been for the Bei Wei code, the proscriptions against bribery in the Tang Code might not have appeared. This is the historical factor which made the conception of bribery change. I can point to the fundamental factor of Chinese ritual and punishment in this context. Bribery, in the form of ceremonial presentations to officers, was not a blameworthy act in ancient China. It was rather a performance of ritual, which expressed gratitude to the officers. This is the reason why in the Han Code taking bribes was not a crime unless the officers broke the law in exchange. Here we can see a principle antithetical to ritual. This is the theory of the law as well as punishment, whose purpose was nothing but deterrence. It became an illegal act for officers to take bribes without further malfeasance down to the Tang. This no doubt embodies the unique character of Chinese penal law. The crime of bribery and its punishment swung between the poles of ritual and punishment in the time from Han to Tang, and transformed their conditions and features accordingly. This is my conclusion.