在嚴懲與慎刑之間:明代〈監守盜〉律的司法難題

Translated title of the contribution: Between Tolerance and Strictness: A Judicial Problem of the Law of Jianshoudao in the Ming Dynasty

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Abstract

The traditional Chinese legal system has long been considered to have achieved restraint through “cruelty of punishment.” This article, however, focuses on the Ming-dyansty law of jianshou zidao cangku qianliang (“superintendents and keepers stealing provisions and money from the treasuries and storehouses”) to show another side of Chinese legal history. In
the early years of the Ming Dynasty, the government promulgated a very cruel law to stop staff from stealing property from the warehouses they
managed. But the law was too strict; even a tiny infraction could result in a death sentence. As a result, society as a whole sympathized with staff charged with minor forms of corruption, nd the strict law was unable to
produce the desired effect. The osts of detention and trials Substantially increased. The government tried to balance the death penalty with a special law named zafan sizui (death Sentence for crimes of less importance). But the new law was too lenient and led to an increase in the crime rate. Moreover, different social classes were treated differently in sentencing, the government expected the stolen property (which was always state property) to be returned, and the possible effects of a structure of complicity resulted
in the law appearing strict, but having only a limited effect.
From the revisions of the punishments of the Ming-dynasty law of
“managers who steal,” the tension in the law between recovering stolen
property and punishing crime can be seen. The law on “managers who steal” shows an evolution in which the judgments continually adjust the degree of
the penalty and the methods to recover property. The government on the one
hand acted as the implementer of the law and had to find a balance between
“strict punishment” and “mercy”; on the other hand, it was the victim in
cases of corruption, and apart from the deterrent effect of the law, it had to
consider all kinds of possibilities to recover property. This kind of dual
identity influenced the effectiveness with which the law was executed, and
foreshadowed the expansion of corruption in the mid- to late Ming.
Translated title of the contributionBetween Tolerance and Strictness: A Judicial Problem of the Law of Jianshoudao in the Ming Dynasty
Original languageChinese (Traditional)
Pages (from-to)85-121
Number of pages27
Journal法制史研究
Issue number37
Publication statusPublished - Dec 2020

Keywords

  • Jianshou zìdao cangku qianliang
  • Great Ming Code
  • zafan sizui
  • banishment

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