唐代 保辜制度의 規定과 適用事例에 대한 一考察

Abstract

The Baogu System guaranteed the victim's convalescence within a fixed period by law, which is called ‘Baogu Period(保辜期限)’, to check a victim's condition of recovery after an assault incident or an injury case. There are relatively lots of records on the Baogu System in the Tang dynasty in terms of the quality and quantity and it is concretely specified in the law. This paper examines the Baogu Period and its range of applications, the relation between Baogu Period and punishment, and application examples of Baogu Period. In the Tang dynasty, the Baogu System had four terms of Baogu Period such as 10, 20, 30, and 50 days. The Baogu Period which has 10, 20, and 30 days was determined based on the kit of violence and the Baogu Period of 50 days was determined based on a victim's degree of injury. The Baogu System was generally applied to violence crime or a charge of injuring. In terms of the application range of Baogu System, violence crime had the Baogu Period irrespective of injuries and a charge of injuring also had the Baogu Period irrespective of violence. First, after the Baogu Period, violence crime or a charge of injuring could changed into a charge of murder. Second, if the causal relationship between a victim's death and injuries or violence was not clear, violence crime or a charge of injuring applied to cases that a victim died during or after the Baogu Period. Third, if a victim's condition was improved after the Baogu Period, the punishment could be mitigated. The Baogu System of the Tang dynasty has three characteristic cases. First, the Baogu System was applied to the case that a criminal died during the flogging execution. Bureaucrats implicated in the case also were penalized. Second, a bureaucrat was sentenced to a severe punishment because the bureaucrat, who took a bribe from a victim, caused a death of a criminal who during the Baogu Period after a flogging execution. The case indicates that illegal activities related with the Baogu Period were made by bureaucrats. Third, the Baogu System was applied to the case such as a traffic accident. Although a victim generally could require the Baogu Period, an assailant also could require the court to set the Baogu Period. The court required an assailant to make a guarantor who stand joint surety and the guarantor was also penalized if the assailant escaped or failed to perform a duty. The guarantor and assailant had to stay in a certain area and take measures for a victim. The Baogu System had illegal activities because it had limits such as limitation of medical state, the legally privileged class including bureaucrats and aristocrats, possibility of close relationship between a local government official and an assailant, and vague elucidation about the causal relationship between injuries and homicide. Although the Baogu System had no direct connection with compensation for damages, it played an important role to make an assailant fulfill his moral responsibility for a victim. The Baogu System was a kind of indirect compensation for damages to provide manpower such as nursing. In addition, the Baogu System played an role as direct compensation for damages in providing medical costs. Therefore, the Baogu System performed functions as liability of compensation as well as criminal reconciliation between an assailant and a victim.