The Hiroshima Law Journal Volume 43 Issue 2
2019-10-31 発行

死刑存廃に関する一考察 : 唐と日本における法制史的検討

A historical study on capital punishment debate: Abolition of the death penalty in the Tang Dynasty and the Heian era
Sun, Lu
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abstract
It is often said that the debate over the death penalty has already been exhausted, but it is also an important fact that it should be noted in historical perspectives as an ideal of human society. The debate on the abolition of the death penalty did not start today, in the case of Japan, the time when the death penalty was not executed goes back to the Heian era. Based on the imperial order of Emperor Saga during the Heian period, the Yamato Court abolished the death penalty for about 350 years. It is believed that one of the reasons that made Emperor Saga do the order is the abolition of the death penalty in the Tang Dynasty.
In the Tempo, 6th (747), Emperor Xuanzong promulgated, “Abolish the penalty of beheaded and death by hanging, executed by beating with heavy bludgeon”, however, the method of executing was not prescribed. For this reason, through the imperial edict, two kinds of death penalty of the whole law in the Tang Dynasty had been abolished, but instead of that, a new kind of death penalty had been created.
The executor of the punishment could execute at his discretion or changes executor during the execution. In some cases, the prisoner had already died during the execution of heavy bludgeon punishment. The death penalty abolished by Emperor Xuanzong only lasted for more than ten years and faded away from the stage of the history in sentencing the rebel army of An Lushan to death in Anshi’s chaos.
On the other hand, in Japan, the Emperor Saga promulgated imperial order about the abolition of the death penalty for perpetrators who had been sentenced to death for thieves in 818, and then, in 823, the death penalty was reduced to a prison sentence of up to 15 years. Under such a law, it had been about 350 years since the death penalty was ostensibly abolished.
Similarly in the Tempo and the Kounin period, although the law abolishing the death penalty was enacted and the execution of the death penalty was suspended, in practice, the death penalty was continued by a different method.
Through the research of the abolition of the death penalty in the Tang Dynasty and the Heian era, this paper introduces the capital punishment debate on historical analysis. Although the duration of the two pieces of abolition was different, it can be said that the research of background, reasons, the social and legal realities between the two pieces of abolition reveals that both of them arrived at the same destination through different paths.
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