漢代請讞考 : 理念・制度・現實

Abstract

Under the Han Dynasty, even county officials--the lowest level of local administrative officials--had the authority to judge legal cases and pass sentence, including sentences of the death penalty. This situation was a reflection of the great deal of latitude permitted to the head of each government office that was characteristic of the Han bureaucratic system. However, each legal case could not be judged on the authority of the head administrator alone. Should the accused satisfy certain conditions, the permission of the emperor had to be sought in order to proceed with a case or execute punishment. In this paper, I refer to this system as the "submission of obligation". In addition to such cases, officials were permitted to submit doubtful cases to a higher authority in order to receive its opinion and guidance. I refer to this system as the "submission in cases of doubt". In this paper, I discuss both of these systems, especially in reference to the ideology on which they were based, and their respective evolution and employment. My conclusions are as follows: the system of "submission of obligation" was intended to be employed mainly in cases of those accused who were related to the imperial house or higher officials, and in such cases the emperor's permission had to be sought prior to arrest and passing sentence. This system was an enactment of the hierarchic principle recorded in the Li-ji 禮記 that "punishment cannot be applied to dignitaries 刑不上大夫". Under the reign of Wen-di 文帝, the arrest of officials who ranked two thousand piculs, heirs apparent of kings, and mothers and wives of marquises without prior submission was forbidden. In the period following, the scope of application of this exception grew wider. By the time of the reign of xuan-di 宣帝, officials who ranked six hundred piculs were included, and in the Later Han relatives within the fifth grade of mourning were also included within the scope of this exception. During the Qin Dynasty, the hierarchy that had existed in the Spring and Autumn period was abolished. The change of the scope was caused by an attempt to re-enact archaic principles in the newly established systems. The system of "submission in cases of doubt" was permitted when the facts of a case remained doubtful, or in cases in which the decision agreed with the letter of the law, but the particular circumstances left people dissatisfied. A principle advocated in the Chun-qiu gong-yang chuan 春秋公羊傳 was to pass sentence in consideration of the heart and mind, as well as of the letter of the law. Decisions based on heart and mind came into force as case law, however, this was not always consistent with the established laws encoded in the statutes 律 and ordinances 令, etc. This inconsistency enabled officials, particularly those who ranked under one hundred piculs, to pass arbitrary decisions. During the Later Han, in order to resolve this problem, case law that was inconsistent with the statutes and that justified arbitrary or cruel sentences was abolished. Such inconsistency was also caused by the disparity between archaic principles and the reality of the newly established systems.