有期勞役刑體系の形成 - 「二年律令」に見える漢初の勞役刑を手がかりにして -

Abstract

The Shuihudi bamboo manuscripts, unearthed from a Qin tomb in Yunmeng 雲夢, Hubei province, led to our new insight that the compulsory labour punishment, classified into five grades, was not limited in time during the Qin dynasty. While there are different views on this matter, this hypothesis now come to be widely accepted. From this viewpoint, Han emperor Wen's decree on penal system reform, including the phrase, "Having completed their term, criminals should be released, " should be regarded as the first order to fix the term of compulsory labour in Chinese history. After the publication of Ernian lüling 二年律令 at the end of 2001, some scholars pointed out the possibility that all, or some types, of labour punishment had definite terms even before Wendi. Having studied the bases of this new assertion, the author reached the conclusion that main forms of labour punishment had no fixed term and that a few types of term-limited labour punishment were considerably different from the main ones because they were imposed on particular persons, such as convicts, or in some particular circumstances. Until the Wendi reform, labour punishment had been classified according to standards other than terms. Although the hardness of labour was considered to be a main standard, Ernian lüling informs us that there were various factors that determined the differences between each form of labour punishment. For example, the wife, young children, and property of a chengdanchong 城旦舂 convict, which was the heaviest form of labour punishment, were confiscated, and sometimes sold by the empire. This was the reason which made this labour punishment heavier than any others. In addition, mutilation was one of the characteristics of chengdanchong because it is certain that mutilated criminals were set to work as chengdanchong. On the other hand, relatives of lichenqie 隸臣妾, the second heaviest labour punishment, were not confiscated, though they were forbidden to live in a normal residential area. As a result, they had to move to the work place along with the convict. Besides, the status as lichenqie was inheritable, and their children were unable to escape from hard labour. Children of sikou 司寇 convict were registered as common citizens, and were allowed to live in a normal residential area. Relatives of fixed-term labour convicts were probably to be treated in the same way as sikou. In the first year of the Wendi reign (BC 179), the regulation regarding confiscation was abolished, and thus an important factor dividing chengdanchong from lichenqie disappeared. Moreover, mutilating punishment was also abolished in the 13 th year of Wendi. There were still other standards for classification, but it became almost impossible to rank each labour punishment according to these standards alone. The fact that definite terms were introduced into the hard labour system along with the abolition of mutilating punishment tells us that the labour punishment system was at this stage no longer sustainable without time limits as a standard. A labour punishment system linearly structured by a single standard came into existence through the above process. From a different angle, we should not overlook that the abolition of mutilating punishment and the introduction of definite terms in the labour punishment system achieved an identical practical effect, that is, cost reduction. Both changes must have reduced the number of convicts and cut the expenditure to sustain these labour forces. State slaves were liberated in the Wendi reign, and this policy also intended the same goal as mentioned above. Facing attacks of the Xiongnu and the threat from marquises, it was no doubt an important political issue to reorganize and rationalize the hard labour system including the military. We have to regard Wendi's penal system reform as an effort toward rationalization and economization.