秦漢刑罰體系形成史への一試論--腐刑と戍邊刑

Abstract

Castration has long been considered a penalty imposed for sexual crimes. Moreover, since it can only be imposed on men, it was explained in classical commentaries that women who committed the same sorts of crimes were punished by confinement. However, in legal materials from Qin through early Han times that have been unearthed in recent years, it has become clear that castration was only applicable to the crime of rape and was not imposed for ordinary sexual offences. Castration should be thought of as having been originally a punishment for the crime of rape, which could only be committed by men. However, there was one other instance in which the punishment of castration was imposed. That was in the case of repeated conviction for crimes that merited tattooing for the first offense, the cutting off the nose for a second, and severing a foot for each the third and fourth offenses. It was for a fifth offense that castration was imposed. In these cases, women were also subject to such punishment. However, there was a discrepancy between the criminal statutes regarding the relative position of castration, as castration had not generally been treated as the most severe form of mutilating punishment. This discrepancy involving the position of castration as a penalty seems to indicate that the regulation stipulating castration as a punishment for repeat offenders was a relatively new one. With the organization of written law codes, there was also an ordering of each type of penalty, and castration, which was firmly linked to a specific type of crime, then came to be used as one form of mutilating punishment for repeat offenders. The use of castration was abolished during the rule of the Emperor Wen, but castration was revived as the most severe form of mutilating punishment and a replacement for capital punishment, and its use then spread during the Latter Han dynasty. It was at that time that a punishment for women that was the equivalent of castration was finally recorded. Women were not mobilized for defense of the borders so they were also not subject to punitive military service on the frontier, which was limited to men, so this penalty, like castration, was not imposed on women. In extant statutes, punitive military service on the frontier was chiefly imposed on those who disobeyed military regulations, and it must have been employed in circumstances in which its application was naturally limited to men. However, the early second-century BCE penal code Ernian lulling from Zhangjiashan shows that punitive military service on the frontier was applied for crimes that could have been committed by women. This is another case in which we can hypothesize that over time a punishment which in the past had been applied for one specific crime came to be treated as another form of labor punishment and used to punish various crimes. With this history of the development of the penal system in mind, one should probably consider the possibility that the phenomena of some penalties not being applied to women was not only a policy of leniency, but that these punishments were originally used in circumstances that applied only for men. The interpretation of the line 婦人無刑 in the Chunqiu Zuo shi zhuan from the 19th year of Xiang Gong that has been rendered with the phrase "punishments for women were not established" needs to be reexamined.