청대 몽골법과 가축절도죄

Abstract

Under the traditional Mongolian law, livestock theft was treated as felony, and this custom was carried on to the Mongolian law in the Qing dynasty. To the Mongolians whose livelihood relied on nomadic lifestyle, the so-called four kinds of livestock, namely sheep, goats, horses, and camels, were the most valuable assets, which meant that if livestock theft became prevalent, it could cause social turmoil in the Mongolian region. Thus, even under the Mongolian law in the Qing dynasty, severe punishment was inflicted on those who committed livestock theft. While related regulations in early Qing were relatively simple, legal procedure and punishment also underwent changes as Mongolian society changed with time. The Qing imperial court introduced elements of the central law, the Great Code of the Qing Dynasty to the Mongolian law to respond to the change of time. Autumn assize(qiushen ), a judicial system of reviewing provincial cases of capital punishment in autumn, was adopted in the Mongolian law to reduce the punishment of the criminals who had committed capital offense, and the deportation(faqian ) was introduced and established as a punishment to deport criminals to interior region. Although the number of stolen goods was not taken into account in the assessment of a case under the Mongolian law in early Qing period, it has undergone changes to differentiate the punishment in a more detailed manner based on the number of stolen goods and the gravity of circumstances. While adopting the principle of “ruling in accordance with the customary practice” as premise and applying the system of central law to Mongolian law, Qing court sought effective and universal operation of law. Just as the Qing Code, which reflected the characteristics of Qing empire, was not just a sinicized law that simply succeeded the Ming Code, changes that occurred in the Mongolian law in the Qing dynasty could not be lumped together under the term, “sinicization.” In a society where people who came from different customs and cultures living by different standards of legal treatments were existing in a mixture, Qing court could not help being concerned about the degradation of fairness and effectiveness of the law. Furthermore, Mongolian law in early Qing fell quite short in catching up to the social changes in Mongolia. Under the circumstance, as the most reasonable and simple measure, Qing court chose to adopt the central legal system while not dismantling the local law. Mongolian legal system in Qing dynasty was a marriage between the Great Code of the Qing Dynasty and the traditional penal system of Mongolia. This paper examines the manner in which livestock theft was treated in the Qing dynasty reflecting the local traits and customs of Mongolia and the mode of changes which occurred to the relevant regulations to define the characteristics of Mongolian law in the Qing dynasty, and furthermore discusses the legal pluralism and flexibility of Qing legal system.