<研究ノート>漢代の死刑奏請制度

Abstract

Prefects (県), the lowest order of local administrative officials in imperial China, judged criminal offenders but did not possess full power to try all cases and pass judgment. Prefects were required to inform the higher authorities in those trials that the prefects were not entitled to judge. This was especially time in instances involving the death penalty, when local administrative officials had to obtain the permission of the emperor to carry out the ultimate penalty. In contrast, it has been thought that during the Han dynasty prefects and governors of commanderies 郡太守 themselves held full power to try cases involving the death penalty, pass sentence, and carry out the ultimate penalty. The bamboo-strip document called Ernian luling 二年律令, which was excavated at Zhanjiashan 張家山, includes a passage that reads, "Prefects must not judge cases involving the death penalty and should inform the governor of the commandery." According to this passage in the Ernian luling, in the Han dynasty, as in other periods, the prefects were not entitled to try cases and pass sentences involving the death penalty. In this study I have attempted to reexamine the view that only during the Han dynasty prefects and governors of commanderies possessed full power to try a case, pass sentence, and execute the ultimate penalty and also to try to recover the procedures involved in the trial and execution of capital punishment. The results of the study are as follows. The governor was entitled to try and pronounce the death penalty, but in order to execute the ultimate penalty, the governor had to obtain the permission of the emperor. We find the clear evidence that requests for permission to execute the death penalty were made to the emperor during the reign of Wuti 武帝 of the Former Han. The procedures for a trial involving the death penalty and execution of capital punishment were as follows. If the accused admitted the truth of the accusation while in custody and under investigation, the prefect composed a legal document 具獄 that included the accusation and the statement of the accused. This document was sent to the governor during the winter months. The accused remain under detention in the prefectural prison. The governor issued a judgment and sent a legal document containing the judgment to the censor-in-chief 御史大夫. The censor-in-chief examined the document, and if he judged it correct, it was forwarded to the emperor. If the censor-in-chief had judged it to be incorrect, it would have been rejected. When the emperor recognized the judgment and granted permission, he ordered the prefect to execute the death penalty. Armed with the permission of the emperor, the prefect read out the accusation to the accused and carried out the death penalty. In point of fact, prefects and governors of commanderies often killed prisoners while they were under arrest and undergoing interrogation in prison.