<研究ノート>清律の「老小廃疾収贖」条における司法上の展開 : 未成年者殺人事案を中心に

Abstract

The Great Qing Code inherited the tradition originating with the Tang Code and contained a statute titled "Monetary Redemption Permitted to the Aged, the Young, and the Infirm" (「老小廃疾収贖」条) that stipulated that if the aged, the young (under fifteen years of age) or the infirm violated criminal law, they should be given mitigated punishment or exemption from punishment in accordance with their circumstances. In respect to the legal provisions concerning a murder committed by a juvenile, there is no fundamental difference between the laws of the Qing Dynasty and the ones seen across the world today. In other words, the criminal behavior and age of the perpetrator rather than condition of the victim were to be considered in order to determine a juvenile's guilt and to gauge the proper penalty. However, in judicial practice, the ruling class of the Qing Dynasty gradually developed new sub-statutes that were completely at odds with the original statute. These were produced through three prototypical cases during the Yongzheng 雍正 Qianlong 乾隆 and Jiaqing 嘉慶 periods. Through these cases, the principle of "comparison of the strong and the weak" 強弱対比 and concrete standards were established and refined. According to this principle, in case of an intentional homicide by a youth, the perpetrator would not receive mitigated punishment or be exempted from punishment simply on the basis of juvenility. Moreover, the "strength" of the perpetrator would be compared with the "strength" of the victim. In order to simplify the process, the method of gauging "strength" was turned into comparison of ages. If the victim were four (or more) years older than the perpetrator, the perpetrator would be considered the weaker party, and if such was not the case, the perpetrator would not be granted such advantage. It should be noted that, "the difference between the strong and the weak" was not identical with being "four years older, " as the principle of justice resided in the "difference in strength" rather than "difference in age". The new sub-statutes produced different rules in juvenile homicide cases depending on the ages of those involved. If the youth who was not older than fifteen (and not less than eleven years of age) murdered someone older who had bullied him or her, the perpetrator would be judged on the basis of the principle of "comparison of the strong and the weak" and other circumstances. The principle of "comparison of the strong and the weak" would be applied to a juvenile murder case when the perpetrator was ten years old or younger (but not younger than eight) in order to determine whether an appeal for extra-legal humane considerations could be made. In the case of a juvenile seven years old or younger, the perpetrator would be considered outside the scope of application of the principle of "comparison of the strong and the weak" as being both mentally and physically immature. The principle "comparison of the strong and the weak" originated from the simple concept of justice that "the dead are ultimately innocent, and indulging a criminal does not constitute love." The ruling class of the Qing dynasty treated homicide cases more seriously than earlier dynasties, and strove to realize justice in specific cases. The application of the principle of "comparison of the strength" to the statute "Permitting a Culprit to Support Lineal Elders" (「犯罪存留養親」条) and to others, also shows the degree of seriousness displayed by the ruling class towards homicide cases. Meanwhile, they came to realize that the indulging criminality should not be permitted in the name of love, and if such were done, license would arise in spite of their serious intentions.

Many researchers have believed that the legal systems of the Qing dynasty were generally similar to those of the Ming dynasty. But, in fact, in the case of the statute of "Monetary Redemption Permitted to the Aged, the Young, and the Infirm, " significant innovations were made via sub-statutes, even though the main text of statute remained the same as that in the Ming dynasty. Therefore, sufficient attention and repeated argument are required in considering the unique quality of the laws of the Qing dynasty.