秦律・漢律における未遂・予備・陰謀罪の処罰 : 張家山漢簡「二年律令」を中心に

抄録

The "Ernian Luling" 二年律令 is a bamboo manuscript excavated from Han 漢 tomb 247 at Zhangjiashan 張家山, Jingzhou city 荊州 市, Hubei province 湖北省 during 1983 and 1984. It consists of statutes and ordinances 律令 which might have been promulgated in the second year of the reign of Empress Dowager LU 呂后 (186 BC) of the early Former Han 前漢 Dynasty. The author examines the "Ernian Luling" in relation to other existing and well-known historical documents concerning Qin 秦 and Han period law, in order to analyze penal policies regarding attempt, preparation and conspiracy in such crimes as homicide, wounding, larceny, counterfeitine (盜鑄銭), rebellion (謀反), kidnapping (劫人), and kidnapping and selling a person (略賣). When comparing the general trends of Qin and Han penal law to that of the later Tang law 唐律,we find three remarkable features, at least in Han law : 1. Under Han law, most types of crimes were to be punished even if they were only in the beginning stage. 2. Tang law applied three different types of punishment for the crimes of homicide and counterfeiting according to their stage of development, while Han law applied two, simply depending on whether the crime was commited or not. 3. Han law often applied the same punishment regrardless of whether the crime was completed or not. These three features show us that Han law dealt with criminal attempt, preparation and conspiracy more strictly than Tang law did. Although there are few historical documents regarding Qin law, it probably had the same features as Han law since the "Ernian Luling" came after Qin law, and they are very similar to each other in general. Penal policy in Qin and Han law intended to stop crimes themselves by warning that criminals should be strictly punished even if they failed in achieving their objective and regardless of whether or not it they were caught in the beginning stage. Qin and Han law more clearly reflected the government's political intent to maintain the social order than the later Tang law.