진(秦)·한초(漢初) 사면(赦免)대상 확대 양상과 한문제(漢文帝) 형법개혁

Abstract

This paper examines the scope of amnesty and the changes brought about by, as well as the implications of, the Reformation of Criminal Law by Emperor Wen (文帝) of the Han Dynasty. The amnesty records reveal that ‘罪人’ were the fundamental constituents of amnesty. ‘罪人’ does not refer to criminals in general but refers to ‘囚人’ in trial before execution, which is distinct from 徒隸. Granting amnesty to those in trial was an effective method to clear congestion in the court system and reduce a large number of ‘囚人’ at once. The first confirmed case of amnesty for 徒隸 is the ‘大赦天下’ of the second emperor of the Qin Dynasty (秦二世皇帝), the first ‘大赦天下’ in China. 宮宅潔 and others have argued that 徒隸 were pardoned prior to ‘大 赦天下’, and the labor problem caused by the release of 徒隸 was resolved through 復作. However, insufficient records of “復作” before Emperor Hui (惠帝) 4th year of the Han Dynasty makes such claim less convincing. According to the timing of the records, ‘復作’ was implemented as a response to the labor problem after the pardoning of the second emperor of the Qin Dynasty (秦二世皇帝) was granted. This paper argues that, from the inclusion of 徒隸 in amnesty to the institutionalization of 徒隸, 復作 was a minimal strategy to release 徒隸 while maintaining the state labor force during such transitional period. On the other hand, those who had received a physical punishment (肉刑) were excluded from the scope of amnesty even after 徒隸 were included. Those who had received ‘肉刑’ were considered ‘non-human beings’ (異人) as their bodies became irreparable. Continuation of physical punishment and 徒隸 into the early Han Dynasty hindered comprehensive application of amnesty. Eventually, the Reformation of Criminal Law by Emperor Wen (文帝) of the Han Dynasty abolished physical punishment and the permanence of 徒隸. Removing the variable of physical punishment through the criminal law reform initiated systematic changes that allowed legal application of pardoning to all people. The significance of the criminal law reform by Emperor Wen (文帝) of the Han Dynasty is that elimination of physical punishment included all of 徒隸 within the scope of amnesty and provided a means to regulate manpower.