秦漢時代對逃犯採取的措施──以《張家山漢簡．二年律令》122-124的分析為中心

Measures against Fugitives from Justice in the Qin and Han Eras: An Analysis of Slips 122 to 124 of Ernian Lüling (Statutes and Ordinances of the Year Two) on the Bamboo Slips Unearthed from the Han Tombs in Zhangjiashan

本文檢討了秦漢時代對逃犯採取的措施。漢代的措施見於《張家山漢簡．二年律令》122-124的規定，其內容是：［1］如果犯了應判完城旦舂、鬼薪白粲以上的罪並逃亡，則對該逃犯進行「命」。［2］如果犯了應判耐隸臣妾以下的罪而逃亡，則發出論令使其為了會而到案。［3］對於逃犯中犯了逃亡罪應判完城旦舂、鬼薪白粲以上的刑罰而未被拘捕的人，根據其逃亡罪量刑也對該逃犯進行「命」。此處的「命」具體是指對該逃犯標示刑罰名稱登錄在縣獄保管的命籍上。秦代也對逃犯進行「命」，與漢代相比，其對象是犯了更重的應判黥城旦舂以上的罪而逃亡者，受到「命」的人的刑罰並非根據審判，而是由律所規定。由此可以認為，秦代的「命」與漢代的稍有不同，是對犯了重罪的逃犯採取的特殊措施。關於從秦代到漢代對「命」的運用方式的這種更改，可以設想是因為秦代對佐弋之罪這種特殊犯罪的運用方式到了漢代就消失了。

This article considers measures against fugitives from justice in the Qin and Han eras. The Han-era measures were stipulated under slips 122 to 124 of Ernian Lüling 二年律令 (Statutes and Ordinances of the Year Two) on the bamboo slips unearthed from the Han tombs in Zhangjiashan. The measures are as follows. 1) If an individual has committed a crime punishable by wan chengdan chong 完城旦舂 (wall-building and grain-husking), guixin baican 鬼薪白粲 (gathering of firewood and sifting of grain), or a heavier punishment and fled from justice, he or she shall be officially registered as a fugitive from justice. 2) If an individual has committed a crime punishable by nai lic henqie 耐隸臣妾 (bond servitude) or a lighter punishment and fled from justice, a lunling 論令 (order) shall be issued to summon the individual to an appointed place or time of meeting. 3) Regarding an individual who should be tried for fleeing from custody for a crime that is punishable by wan chengdan chong, guixin baican, or a heavier punishment and has not been apprehended, his or her punishment shall be determined according to the charge of fleeing from custody, and he or she shall be officially registered as a fugitive from justice accordingly. This procedure of official registration of a fugitive from justice is referred to as ming 命 and involves entering the name of the fugitive from justice along with the corresponding punishment in the ming records kept at prefectural jails. The ming procedure was applied to fugitives from justice under the Qin dynasty too. However, it was only applied to individuals who had fled after committing a more serious crime punishable by qing chengdan chong 黥城旦舂 (tattooing as well as wall-building or grain-husking) or a heavier punishment. Moreover, the punishment of those who were officially registered as fugitives from justice was not determined in court but by the statute. This suggests that the Qin-era ming procedure was somewhat different from that in the Han era in that it was intended specifically for fugitives from justice who had committed a felony. This change in application of the ming procedure from the Qin and to the Han dynasty may have been due to the fact that its application by the Qin to special crimes such as zuo yi 佐弋disappeared under the Han dynasty.