著者

大野 徹

出版者

大阪外国語大学

雑誌

大阪外国語大学論集 (ISSN:09166637)

巻号頁・発行日

vol.33, pp.103-130, 2006-03-28

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The system of Criminal Punishments differs from age to age and also from state to state. In ancient China, the criminal punishment was inflicted on the offender on the basis of the Penal Code called LU (律). The Five types of punishments were stipulated for the first time in the Penal Code of Sui (隋) dynasty. It was composed of (1) flogging with a bamboo stick, (2) beating with a heavy wooden stick, (3) criminal servitude, (4) banishment to a remote area, and (5) death penalty, which was implimented in the forms of two different methods, namely decapitation and strangulation. This system of punishments was handed down from the ancient times to the modern time ending with XIN-HAI Revolution (辛亥革命) in 1911 A.D. The Penal Code of Tang (唐律) was introduced to the Korean Kingdoms of Silla (新羅) and GAO-LI (高麗), and the Penal Code of Ming (明律) was accepted by the kingdom of Li (李). WEI-ZHI (魏志) mentions that no jail was in the kingdom of GAO-JU-LI (高句麗), but if the criminal who had commited a homicide was sentenced guilty he should have been executed and his family were forced to be slaves. The punishments stipulated in the penal code of the Li (李) dynasty were similar to those of kingdom of GAO-LI: namely beating with a bamboo stick, flogging with a heavy stick, criminal servitude, exile to a remote area and death penalty. Japan was also influenced by the ancient culture of China including her legal system. The death penalty was, however, abolished and commuted to the banishment to a remote area or forced labor during 339 years from the 9th century to the 12th century A.D. Under the administration of the KAMAKURA Government (鎌倉幕府), the painful methods of execution were imposed in the forms of crucifixion in upside down, burning at the stake, burrying the criminal to his waist and allowing any spectator to carve him by a bamboo saw, boiling the offender in a cauldron, impalement with a spear, quartering the body of the criminal into cardinal directions by hauling with four bulls, rolling the body up with a bamboo blind and throwing into a river. The TOKUGAWA Government (徳川幕府) promulgated abundant laws and regulations, one of the most noteworthy of which was called OSADAMEGAKI-HYAKKAJO (御定書百箇条). The following were the typical punishments stipulated in it. (1) execution by crucifixion, sawing, burning at the stake, decapitation or exposure of the head of the criminal after his decapitation. (2) corporal punishment by beating or tatoo. (3) restriction of the freedom by dismissal from his residence, banishment to a remote island, exile, confinement in his house or fetters. (4) payment of fines or penalty, confiscation of his property or whole properties. (5) degradation of his social status to the discriminated. Prior to 1911 AD, MING and QING codes of China were applied to the Mongolian (蒙古) states. The death penalty was imposed, according to the stipulation of the Great Yasa of Jenghiz Khan, upon the offender of rebellion, practice of sorcery, theft, adultery, sodomy and so on. Capital punishment was frequently inflicted on the criminal in the Great Yasa. Meanwhile, it was applied only three cases in regard to the defence of the state in the Mongolian_Oirat Regulations of 1649 A.D. The mutilation was seldom occurred in Mongol. It could be commuted to a payment of indemnity to the victim of the crime or the family of the deceased. The first Vietnamese penal code called HONG-DUC CODE was promulgated by Emperor Le Tan Ton (Hong Duc=洪徳) in 1483 A.D. It commenced with the "Five Penalties" which were composed of (1) the whipping with a knout or a stick, (2) the criminal servitude such as forced labor, (3) the exile to a remote region, frequently combined with beating or chainning, and (4) death penalty by decapitation or strangulation. Another code called GIA-LONG (HOANG-VIET) CODE was codified by the Emperor Nguyen An (Gia Long) on the basis of the Qing Code of China. Five Punishments were similar to those stipulated in Hong Duc Code. A number of DHARMA SASTRA and ARTHA SASTRA of Kautilya are the prominent laws of ancient India. Manu Smrti dealt with crimes like Defamation, Assault, Theft, Robbery, Violence, Adultery and False Evidence. Similar crimes were provided in the Code of Yajnavalkya. Manu stipulated imprisonment, fetters and various kinds of corporal punishment. The fine was imposed on the criminal in almost all the offences. The corporal punishments like severing hands or the legs were imposed in cases of adultery, theft, robbery and Dacoity. If a pilferer and a pickpocket committed the crime, his thumb and index finger were severed. It is a prominent feature of Penal Code of India that the offence committed by the Lowest Caste against the Three Higher Castes was heavily punished. If a man of the lower Cast had a sexual intercourse with a woman of the higher Castes, his genital organs should have been severed. The death penalty was inflicted on the homicide, particularly the murder of a woman, an infant or a Brahman, and abduction of a woman by force. A Brahman who commited a homicide, incest, and a theft had to be branded on his forehead with any of the ashamed mark expressed the tell_tale. The Royal Edict of King Kyazwa of Pagan Dynasty was one of the most ancient records of Burmese criminal procedure. An inscription of 1249 A.D. mentioned the following punishments: beating the offender with a thorny cane, severing his ears or nose, cutting his limbs off, boring a hole in the skull and pouring the melted iron into it, burning the inside of the mouth cavity with fire, decapitation, cutting the skins of jaw, collarbone or rib with scissors, notching the skin with a razor and sprinkling lime juice, salt or lye upon them. The Dharma Sastra of ancient India was also referred in Pagan period as a reliable source for the legal judgement. It was, however, the king who expressed his judgement as the royal edict, which contained various judgements upon the offenders such as the dismissal from their services, degradation of their high status to the lower status, confiscation of their properties, exile of the criminal to a remote area, beating with a cane, death by skewering or by setting the body with fire, severing his limbs, chopping his arms. The system of criminal punishments in Konbaung period was almost similar to those of Nyaungyan period.