法制史研究
Online ISSN : 1883-5562
Print ISSN : 0441-2508
ISSN-L : 0441-2508
日本律編纂考序説
高塩 博
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ジャーナル フリー

1980 年 1980 巻 30 号 p. 1-55,en3

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This thesis consists of (1) Introduction, (2) General view of the study-history, (3) The relation of Ku-Tang-lü-shu-yi (Ko-Toritsu-Sogi) to Yung-hui-lü-shu (Eiki-Risso), (4) The codification of the Japanese Code (Nihon-Ritsu) based on Tang-lü-shu (To-Risso), (5) Elimination and curtailment of Shu-wen (Sobun, the Commentary), (6) The codification of the Japanese Code, (7) Conclusion. The Japanese Code and Statute (Nihon-Ritsuryo) established at the beginning of the 8th century was an adopted form of the Chinese Code and Statute (Ritsurei), namely, Yung-hui-lü-ling (Eiki-Ritsurei) of Tang. Today, the view prevails that there is a great difference in the attitude of the adoption of the Code and that of the Statute. That is, the Japanese Statute (Nihon-Ryo) gave a great modification to the Tang Statute (To-Rei) by allowing for the situation of then Japan while the Japanese Code was nearly a copy of the Tang Code with nothing different from it. Examining not only this view about the adoption of the Code but the process of the codification of the Japanese Code as well, we could find that the studies so far made about it have neglected an important fact. That is, they have neglected the fact that the Japanese Code was based upon Lü-shu (Risso) which was an officially edited commentary, and codified into the Code (Ritsu), to put it the other way, that the Japanese Code adopted the commentary of the Tang Code not as the commentary but as the text of law. This is one of the most distinguishing points characterizing the Japanese Code and where great elaboration must have been needed in terms of the technical matters of codification.
Tang-lü-shu (To-Risso) was also so logically constructed that it seems nearly impossible to have given basic modifications to its mere parts. Consequently, the elaboration in codifing the Japanese Code was not only to rearrange Tang-lü-shu into the Japanese Code, but also to clarify the text of Tang-lü-shu in order to be able to apply it to the reality more smoothly. Thus, Examining the Japanese Code (Nihon-Ritsu) much more closely, we seem to realize that those studies hitherto made about it could not grasp the exact understanding of it, and we seem to have to give much higher estimation to the Japanese Code as a great product of those efforts.

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