秦漢律における同居の連坐

Abstract

The collective responsibility of co-inhabitants 同居 has heretofore been considered as referring to that of blood relatives. Judging from actual outcomes, this can be said to have been the case, but in principle collective responsibility of co-inhabitants is clearly distinct from familial responsibility, and is instead similar to the collective responsibility of members of the group of five 伍人. First, familial collective responsibility was determined by blood relations -- wife and children, parent and siblings, but the collective responsibility of the members of the group of five or co-inhabitants was determined by a shared residential relationship represented by the register of Hu 戸籍. Second, in the case of the collective responsibility of the family, the relationship itself was the source of collective responsibility, but in the case of the collective responsibility of the five-person group or co-inhabitants, the source of the collective responsibility was precisely the fact that the crime was not prosecuted. Third, in the case of familial collective responsibility, the goal was to intimidate the criminal through collective responsibility of family members, the goal in the case of collective responsibility of the group of five or co-inhabitants was to threaten those people in proximity to the criminal with collective responsibility. Fourth, collective familial punishment was issued in cases of severe crimes, but collective responsibility of the group of five residing or co-inhabitants was issued for relatively easily discovered crimes. Fifth, in familial collective responsibility, capital punishment or punitive reduction of social status, in other words, severe punishment was issued, but in the case of the collective responsibility of the group of five or co-inhabitants, the punishment issued was relatively light and often consisted of monetary fines. Judging from the above, it is clear that maintaining the theory that the collective responsibility of the family was determined by the scope of the register of Hu is untenable due to confusion over the collective responsibility of the family and that of those who shared a residence. As for the rights and duties among families in Qin and Han legal codes, all were modeled on mutual relations centered on the individual and were not a discrete system that was organized like the register of Hu. It is necessary to re-examine just what the character and effect of Hu 戸 had in terms of the legal system, and the collective responsibility of those in a shared residence is highly suggestive. The collective responsibility of a shared residence, in other words, of those registered in the same Hu can be deemed collective responsibility based on spatial proximity rather than on shared blood. In this case, Hu can probably be best understood as subsumed under the unit of five and as the smallest unit of a spatial character. Regarding Hu as identical with the family ignores this aspect and must be termed scholastically dangerous.