秦漢代 奏讞文書의 被告 진술을 통해 본 기층사회의 實相

Abstract

This article has analyzed the testimonies of the defendants recorded in Zouyan 奏讞 documents that are legal precedents of the Qin-Han. Accordingly, through the testimonies of the defendants (a total of 37) recorded in newly excavated texts of the Yuelü 嶽麓 Qin Manuscripts and the Zhangjiashan 張家山 Han Manuscripts, the article tried to delineate diverse images of the people of the lower strata who actively responded to the legal forces of state power of the Qin-Han and sought for various solutions to manage their life. First of all, the article has mentioned that the testimony of the defendant is sequentially constituted: an initial statement of the defendant's personal information and one's parol on the case, answering the questions of the judge, and finally admitting one's guilt. Using this analysis as a base, the article studied data such as the defendants' name, their status, whether the testimony is provided or not, and the punishment of each of the cases. If we divide the various defendant's status into officials (guan 官), commoners (min 民), and slaves (nu 奴), we can argue that there was a difference in the level of state control over the people according to their status during the eras of Qin and early Han. The crimes in the two corpus of Zouyan documents can be classified into types such as bandits (qundao 群盜), murder (zeisha 賊殺), murder or wounding related to theft (盜殺傷), theft (daozang 盜贓), renegades (taowang 逃亡), sexual-crimes, fraud (zhaqi 詐欺), threats (xiepo 脅迫), and counterfeit (weizao 僞造). This article has primarily focused on the bandits and ‘rebels’ (fan 反), people who used weapons and directly resisted to state power, and the renegades (wang 亡), people who ran away state power. This was because these were the most active ways of responding to state power for the people who were at the opposite side of the forceful impositions. Thus, the article regards that although the "mountains and valleys" (shangu 山谷) - spaces where the renegade bandits and rebels took shelter - were independent spaces completely departed from the boundaries of state power, these spaces provide stories that can delineate the effects of law not just one but in a two-sided way that cannot be read merely by reading the legal codes per ce. In this regard, the article attempted to search for the existence of diverse histories related to commoners who turned their backs on the legal governance of state power and the history of their resistance towards state power. These histories are not ‘inscribed’ on the historical narratives of the traditional ‘sources.’ This article also focused on the market (shi 市), which is the space where people ‘desire and aspire’ (yüwang 慾望). This was because the article has regarded the market as a space where the desires and aspirations of the people meet and aggregate. Indeed, we can observe from the legal precedents of the Zouyan documents that although on the one hand the markets were producers of state income through the lawful trades and accumulation of profits, they were also spaces that crimes such as murder, robbery, theft, threat, and fraud, which were unlawful but events that could happen anytime in the human-society, were committed in a daily basis. Therefore this article regarded cases pertaining to the market, which is the space where the ‘desires and aspirations’ aggregate and collide, can be used as a prism to read the active responses of the receiver (which did not discriminate the usages of lawful or unlawful measures and aimed at securing one's survival and benefits) against the forceful transmitting of state law.