中國刑罰史における明代贖法 : 唐律的「贖刑」概念との比較

Abstract

Under influence of the conception in the criminal code of Tang, amends fines 贖刑 are usually understood mainly as a privilege of exemption of punishment in conformity to the regular five-penalties 五刑 granted according to estate or rank. However, the legal practice under the Ming Dynasty, during which amends fine law reached an unprecedented complexity and expansion, shows a completely different picture. Besides thorough extinction of any limitation in behalf of estate, the whole range of five-penalties from flogging up to capital punishment became object to amends fines, with exception of so called true-death penalty 眞犯死罪. Based on the fact that nevertheless traditional five-penalties were maintained during the Ming Dynasty, it will be advocated, that five-penalties do not form a set of genuine penalties 刑罰, but represent a conceptional order of penalty 刑名 according to which degree of criminality is measured and graded. Genuine penalties need to be specified by laws external to the criminal Code 律, as in the case of the Ming Dynasty amends fine laws. It is expected that this insight into the function of amends fine law gives an impetus to rethinking of the relation of criminal code and penalty system in traditional China.