사법의 明淸교체 ― 贖刑의 역설과 實刑主義로의 전환 ―

Abstract

Ming-Qing Transition brought about huge changes in the judicial aspect. Among them, focusing on the punishment system, there was a difference in that during the Ming era, the five punishments were not actually executed and were replaced through amends fine or labor, whereas during the Qing era, it was preferably not allowed. This study shows the reasons why amends fine was suppressed during the Qing era, and reveal the process of this change. The analysis of the judicial tradition of the Manchus before entering the China proper, the differences in the systems between Ming and Qing did not provide a strong answer to finding the cause of the Qing’s reduction of amends fine. What I focused on was the harmful effects of widespread amends fine during the Ming era. The original purpose of amends fine was to avoid the actual execution of the five punishments on the people, but it was developing into a corruption as local officials forced amends fine even on those who could not afford to pay amends fine. After entering Beijing, the Qing dynasty declared the abolition of amends fine, and although there were vicissitudes, it established a judicial system centered on actual punishment. This was possible because legal abilities were being made to execute the five punishments as an actual sentence, which had been replaced by amends fine. The punishment of caning was changed to reduce the legal number by about 40%, and the biggest concern, the exile punishment, was solved by using the northeastern region, which had been empty after Manchus’ moving. Although amends fine and actual punishment appear to be in conflict, but at the same time they coexisted in a form that simultaneously satisfying judicial demand of the dynasty. As the military exile was expanded behind the amends fine during the Ming era, at the Qing era, the burden of jurisdiction was shared to some extent by the amends even under the principle of actual punishment.