モンゴル法における刑罰の變遷

Abstract

The work "The development process of the old penal law in East Asia and its indemnity system (Busse)", (Higashi-Ajia kokeiho no hattatsukatei to baishosei (buse) 東アジア古刑法の發達過程と賠償制 (ブーセ), in : Studies in the history of Chinese penal law, Chugoku hoseishi kenkyu; keiho 中國法制史研究･刑法) by Niida Noboru 仁井田陞 maintains that the Mongol penal system evolved in response to the formation and growth of governmental authority. It progressed from revenge to indemnity, from a fixation of indemnity payments to fines, and finally towards a real penalty system. This work also advocates that the course of development is not an exception to the general development process of penal laws which is common to all peoples. In contrast this paper reexamines Niida's theory by graphing the differences and the process of change of the penalties based on the type, the materialization and the mode of the crime, that is, based on different circumstances of the crime. The paper refers to Mongol law dictionaries from the 17th century on and to the regulations of old Mongol precedents of the Qing period. It holds that in this process, indemnities and fines do not necessarily stand in a vertical relationship, but they seem to have an horizontal coexistence. This relationship and especially the change towards a real penal system do not evolve innately, but they emerge from outer pressures. This study searches the origins for the latter pressures in the changes of the Qing Mongolian policies. Primarily it opposes Niida's theory, which considered the changes in Mongol penal law as confirming to the general development. It presents this case as an example where it may be better in the present stage of our knowledge to trace the legal changes of individual peoples, based on actual cases, rather than presuming a priori that the history of penal law development is universal.