淸代 사법에서 十惡의 위치와 역할

Abstract

This study analyzed the role of “the Ten Abominations” in the judicial system in Qing era. One of the characteristics of the traditional Chinese legal system since Tang era is the existence of a Confucian morality within the penal code. The Ten Abominations article represents this. It can be said that the Ten Abominations are a categorization of crimes against the emperor and parents, and the actual punishment for the acts belonging to them can be grasped through the corresponding articles. However, the sentencing of the articles varies from “eighty strokes” to “death by a thousand cuts”, and leaves questions about the substantive role of the Ten Abominations. First, I focused on the article of the Great Qing Code, and examined the “plotting the killing of paternal grandparents and parents” article, which is linked to the two parts of the Ten Abominations. If somebody planned to kill his grandparents but didn't do it, it was included in the Ten Abominations, though it was not a criminal act punished by the article. This was due to the fact that only the Ten Abominations remained, while the other articles used in the substantive judiciary were elaborated, resulting divergence between felony and moral norms. On the other hand, the Ten Abominations have been classified as an exception to mercy since their appearance. In fact, the pardon given at the time of Qianlong emperor’s coronation clearly stated that the criminal who committed the Ten Abominations would not be released. Therefore, the governor of each province who received an order of the mercy requested the pardon of the criminal who meets the conditions. Considering three cases that appear in Xingke Tiben, whether it corresponds to Ten Abominations or not was applied as a criterion for determining the forgiveness. However, from the mercy after the Jiaqing era, unlike the earlier cases, only some of the Ten Abominations were subject to forgiveness, rather than being an exception to the mercy just because they belonged to the Ten Abominations. In this way, apart from its symbolism, the actual vigilance against crimes belonging to the category of Ten Abominations gradually decreased. After all, considering the situation of the Qing era when legal knowledge was widely circulated in the local areas, it can be judged that the Ten Abominations were the minimum moral instructions that could function through the codified criminal code. And unlike the actual mercy administration, it is probably because of such a purpose that the “guilty unforgiving” was put in the foreground.