秦漢刑政攷

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  • A Research on the Penal Policy in China During the Ch'in and the Han Dynasties

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Since the ch'in documents were discovered in Hupei, China, remarkable progress has been made in the field of Chinese history.<BR>This thesis aims to investigate some of the legal policies that were made during the Ch'in and Han Dynasties.<BR>SECTION I covers the rules on the "excuses and extenuations" from punishment for the youth and the aged during Ch'in Dynasty.<BR>We know that during the T'ang Era general rules of "excuses and extenuations" were integrated into their legal system.<BR>Through the examination of Ch'in documents we can trace back some of these general rules to the Ch'in-lü _??__??_.<BR>Namely, in trials for penal offences, allowances were made for the youth and the aged. But the definitions of the "youth" during the Ch'in Dynasty were different from the definitions of "youth" used during the Han Dynasty to the present.<BR>During Ch'in Dynasty "youth" and "adult" were. distinguished by one's height.<BR>The dividing line between "youth" and "adult" was set at 6 Ch'in feet (23.1cm×6=138cm).<BR>So, when a "youth" commits a crime, his punishment is commuted.<BR>In regard to the aged person, his rights were protected by a special provision, namely the provision of "pu hsia" _??__??_.<BR>SECTION II mainly covers the general rules of "excuses and extenuations" during the Han Dynasty. During the Han Dynasty, further provisions were made, such as<BR>1) Provisions for those under age fifteen, for youth under ten, eight and seven, various degrees of commutions were done.<BR>2) With Confucian influence, the policies of mercy for the aged, disabled and women were applied one after another, and the policies were completed in the T'ang-lü _??__??_.<BR>SECTION III covers the census-taking system.<BR>Through "Hou Han shu" _??__??__??_, we know that during the Han Dynasty the annual census-taking was held in Aug. of each year. Through my research of the Ch'in documents, I have proven that this Han system is traceable to the Ch'in Dynasty.<BR>SECTION IV covers the meaning of a passage in Han-chiu-i _??__??__??_.<BR>It includes the following provision: "nien wu shi liu mien" _??__??__??__??__??_.<BR>In 1941, Prof. Shigeo Kamata theorized that this passage shoud be a provision concerning the land tax and service duties.<BR>On the other hand, in 1957 Prof. Mitsuo Moriya theorized that this passage was a reference to a provision in the "excuses" for punishment. Prof. Kamata's viewpoints are probably closer to the truth.<BR>The ability of tax and service duties was determined by the person's "productive capacity". This "productive capacity" was determined by the person's medical status.<BR>In other words, person's ability was determined on medical grounds. During the Han Dynasty "Huang ti su wan ching" _??__??__??__??__??_ was widely read and accepted as the medical text. It reads as following: "at the age of fifty-six, man's liver, muscle and generative functions decline" (VOL, 1).<BR>The passage is the basis for the "nien wu shi liu mien "provision.

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  • 法制史研究

    法制史研究 1983 (33), 97-122,en6, 1984-03-30

    Japan Legal History Association

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