著者

萩原 守

出版者

公益財団法人 史学会

雑誌

史学雑誌 (ISSN:00182478)

巻号頁・発行日

vol.97, no.12, pp.1939-1976,2073-, 1988

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A great deal of research has been done on the legal system in Mongolia during the Ch'ing period. But most of it is concerned with interpreting the Mongol Code (meng gu li 蒙古例) enacted by the Ch'ing government and tries to understand the judicial system in Mongolia in that way. There is no research which utilizes any actual judicial precedents. So there has been no way to see, except by speculation, (1)which code was actually effective, (2)how judgment was actually achieved, or (3)how leagues (cirulran) and banners (qosiru) actually functioned as judicial organs. In this paper the author collects and analyzes materials on judicial precedents in order to determine the actual process of the judicial system. He uses a collection of official documents (dang an 〓案) written in Mongolian. It was transcribed into the Cyrillic alphabet, titled as The oppression of Mongolian females in the period of the Manju invaders, and published at Ulan-bator in 1958. He also uses some other official documents photoengraved and introduced by K.Sagaster. The second chapter of The oppression of Mongolian females contains three documents exchanged between banners and leagues concerning an attempted murder which occurred in the left-wing-right-end (zuo yi you mo 左翼右末) banner of the Han-uul league in the Halha region. Looking at them, we can see the actual process of judgment. The outline of this incident is as follows. Two brothers stole three horses from a tayiji, but the bannerhead (jasar) ignored the Mongol Code and judged them by himself without reporting to his superiors. A daughter of the younger brother was given illegally to the tayiji in return for the stolen three horses and became a slave of the banner-head afterwards. Six years later she attempted to murder the banner-head and his wife, after she was incited by a man who had a grudge against the banner-head. The banner court of law sat again. Because she disclosed the illegal action of the banner-head in the second court of the league, the incident involved the banner-head himself and was reported to the emperor Qianlong (乾隆) by way of the minister dealing with the affairs in Huree (ku lun ban shi da chen 庫倫辧事大臣) and the board of foreign affairs (li fan yuan 理藩院). Finally the banner-head was deposed because of his illegal procedure and failure to report to his superiors, while the daughter was exiled to Canton, and the principal offender of the theft, her uncle, was sent to Hunan or Fukien. From these incidents, we can point out many legal facts which have not yet been appreciated. The first significant fact is the positive proof that the Mongol Code was applied in Mongolia during the Ch'ing period. And the second is the major principle that the Penal Code (xing lu・xing li 刑律・刑例) of the Ch'ing Code (da qing lu li 大清律例) was to be applied if there were no appropriate regulations in the Mongol Code. We can also bring out some other valuable facts : (1)the requirement that serious criminal cases had to be reported from banners to leagues and then to the board of foreign affairs, (2)the actual conditions at each level in which courts sat and the decisions were made and (3)the process of transporting criminals and witnesses from banners to leagues and then to Huree.