著者

赤城 美恵子

出版者

法制史学会

雑誌

法制史研究 (ISSN:04412508)

巻号頁・発行日

no.54, pp.25-59,en5, 2004

---

This article is a study on the introduction of the Court Assize (<I>Chaoshen</I> _??__??_) in early <I>Qing</I> dynasty with respect to three aspects of its background, procedure, and case-classification.<BR>In the Code (<I>Lüli</I> _??__??_) of <I>Qing</I> dynasty, capital punishments were expressly distinguished into decapitation, strangulation, and so on at the point of the punishment type, and also distinguished into <I>Lijue</I> (_??__??_) and <I>Jianhou</I> (_??__??_) at the point of the execution timing. The bureaucratic structure also functioned as the judicial structure. Each bureaucrat who would judge a case made it clear that the suspect had some criminal act; selected the suitable punishment according to <I>Lüli;</I> and reported to superior officer for his sanction. In capital cases, the emperor would finally judge. If it was a <I>Lijue</I> case, a person judged to death by the emperor was simultaneously ordered to execute; if it was a <I>Jianhou</I> case, on the other hand, he was not immediately executed. There was the revision procedure whether to be executed or not about <I>Jianhou</I> criminals. The revision procedure for <I>Jianhou</I> criminals in the prison of the Board of Punishment at the Metropolitan was called the Court Assize. The revision procedure in the local prison was called the Autumn Assize (<I>Qiushen</I> _??__??_).<BR>In ancient China, there was an idea that crimes should not be executed at spring and summer, except for special significant crimes that should be executed without delay. <I>Ming</I> dynasty classified each of capital crimes on <I>Lü</I> (_??_) whether to be executed without delay or not, and began the revision procedure about criminals of <I>Qiuhou-Chujue</I> (_??__??__??__??_) who were not executed until autumn.<BR>Just after entering Peking, <I>Qing</I> dynasty decided to distinguish between <I>Lijue</I> and <I>Jianhou</I> in local cases. Surely the local <I>Jianhou</I> cases were subject to the revision, but without <I>Qiuhou-Chujue</I>. Cases in the Metropolitan Area had neither such distinction nor such revision procedure. Since the Han bureaucrats regarded such inconsistency as the problem, they often requested to introduce Qiuhou-Chujue procedure and the distinction between Lijue and Jianhou in the Metropolitan cases. Finally, in Shunzhi (_??__??_) 10 (1653), Li-Huaxi (_??__??__??_), who was the Minister of the Board of Punishment explained the necessity of the reform of the procedure in view of political purpose of legal unity. Then it was decided to introduce such distinction into cases of the Metropolitan Area. On this opportunity, it was decided that all Jianhou cases were to be Qiuhou-Chujue and that the revision procedure should be carried out at the autumn execution in all districts.<BR>When Qing formed the Court Assize procedure based on that in Ming dynasty, Qing did not reproduce faithfully, but adapted it to the society and the bureaucratic structure which was mixed by the Manchuria and the Han. Thus the political system in early Qing dynasty was reflected in the practice of the Court Assize.<BR>The revision procedure had some case-classifications. In Court Assize, bureaucrats judged and selected suitable class for each criminal, and submitted the case for imperial sanction. Each Kejin and Keyi was one of the case-classifications of revision procedure. The former was used for comparatively slight cases of Jianhou; the latter was used for doubtful cases. Kejin or Keyi meant that the execution was not suitable for the criminal of that case. Because Kejin and Keyi had such resembled function, these two categories was confused, so that a term Jinyi (_??__??_) was seen at Ming. In some case, these two seem to substantially be confused. But, in materials, it also seems that bureaucrats distinguished Kejin from Keyi as the category of case-classifications. The seriousness of the case was the classification criterion.