1993 Volume 1993 Issue 43 Pages 73-115,en3
This article considers the inheritance and change of Chinese law in ancient Japan, principally on the problem of indemnity system.
First of all, Section 1 covers the considerations on the atonement account by the property dedication as seen in "Nihon Shoki (_??__??__??__??_)".
Conventionally, such theory had been prevailed that the indemnity system chiefly by the property punishment existed also in Japan. This theory had been based on the legends as a proof that a person who braved a crime of treason against sovereign power was escaped from his death by dedicating to the power the land and people possessed by him.
However, as a result of reconsideration, it has been now made clear that these legends were just created all at the stage of "Nihon Shoki (_??__??__??__??_)" compilation as a tale to explain the origin of "Miyake(_??__??_)" and "Nashiro(_??__??_)".
Therefore, death punishment was enforced to the crime of treason as a rule even before "Ritsuryo(_??__??_)" system and the confiscation of property is considered to have been executed additional punishment.
This does not mean naturally that the indemnity system was not existed at all in Japan before "Ritsuryo" system. According to Chinese historical documents such as "Gishi Wajinden (_??__??__??__??__??_)" and "Zuisho Wakokuden(_??__??__??__??__??_)", it is known that the practice similar to the indemnity system was existed in Japan in about 3rd to 6th centuries in connection with the theft crime.
Accordingly, Section 2 covers the considerations on the process that the practice similar to indemnity system in ancient criminal law in Japan was excluded from official punishment of the ancient state and was gradually united to non-indemnity criminal system on the model of Chinese "Ritsu".
In regional community, when a certain action was taken that damaged to the community, a person concerned was required to dedicate his property as "Harahe(_??_)". This practice is said to be a kind of indemnity system in a wide sense. After "Taikano Kaishin(_??__??__??__??_)", government prohibited such private practice and, at the same time, established unique criminal law different from the criminal law in Chinese sense. This makes us suppose that unique and inherent law was generated in Japan, although Chinese law was inherited.
Section 3 adds the considerations by taking example of burning punishment(house burning) from the viewpoint of inheritance and change of the law.
In the ancient criminal law of China, burning punishment was executed generally by burning the man as a retaliatory punishment against the murder of relative when he did it. In Japan, there were many examples of burning the house of criminal as a punishment for the crime of treason against sovereign power.
In ancient criminal law of China, there were also examples of destroying the house of criminal against the crime of treason. But such examples were rare. Besides, this punishment was executed by destruction by all means but did not use fire. Japanese ancient tradition for burning the house not only destroying it is considered to have had incantational character to cut off defilement caused by such crime, as different from that of China.
To sum up, the house burning in Japan has the character of inherent law with the change by conception of crime in Japanese manner, although it has a far origin from Chinese law.
Thus, Japanese ancient criminal law was not specially isolated law, but had been developed in the East Asian law system with the center in China and such inherent law had been newly created in the process of the inheritance and change of Chinese law. This is the conclusion through all the description of this article.
