唐代 流刑制度의 活用과 變容 (Application and Modification of the Exile System in the Tang Dynasty)

서지정보

· 발행기관 : 동양사학회
· 수록지 정보 : 동양사학연구 / 128호 / 161 ~ 202페이지
· 저자명 : 김진

초록

The system of exile is next in severity only to the capital punishment among the Five Punishments; it is the act of obliterating the offender's social life by banishing him to a 'far off place' and thereby separating him from his livelihood. Accordingly, statutes and articles concerning exile is detailed and various, specifying the place of exile, convoy to the place of exile, the nature and duration of labor to be endured, possibility of accompaniment of family members, terms for return, etc. Nonetheless, the application of the system far exceeded the written principles; the desires of the emperors of the Tang dynasty to win reputation as a ruler of 'magnanimous punishment' had great effect on the general system of exile.
Being a ruler of 'magnanimous punishment寬刑' that gave out punishments 'magnanimously and discreetly' had its focus mainly on capital punishment. A ruler that did not use the death penalty indiscriminately, thus adhering to the rule of 'not being able to bear killing不忍刑殺', was considered the mark of governing by benevolence仁治. This reluctance to apply the death penalty necessitated the use of exile as a more humane alternative. Herein lies the root of the problem; the exile was not as severe a punishment as could function as a replacement of, to some point, the death penalty.
The exile is not as visible, or direct a form of punishment as the death penalty or flogging. In the first place, convoying the offender to the place of exile was a long, difficult journey, and government officials were unable to prevent accidents such as escape of the offenders, without massive administrative investment. Frequent grants of clemency, regulations that allowed offending government officials to return to post after a 6 year period of exile, with indeterminate serving terms for the layman, all resulted in diminishing the penal effect of exile. In order to complement these shortcomings of the exile system several alternatives were contrived; 'Extended Exile長流', 'Death Grant賜死' and 'Exile after Flogging決杖配流'.
'Extended Exile長流', exile with a longer period for stronger punishment, is a term that does not appear in the Tang code, corroborated only in execution records. Although the strengthened punishment was established with the intention of restraining the possibility of return to normal society, giving the exile a character of a life sentence, there remained, albeit limited, possibilities of return by grant of clemency, and even cases of returning to government post after a respectable period. Other methods of eliminating opportunity of returning to society became necessary; resulting in the 'Death Grant賜死'. In the 'Death Grant', the offender reaches death by order of the emperor, after being sentenced to exile, before, during or after convoy to the place of exile. It has the effect of eliminating the burden of an official death sentence, while overcoming the limits of exile, extended or otherwise.
As another alternative, the system of exile came together with flogging for an instant ascent in the penal effect, resulting in the system of 'Exile after Flogging', an appropriate alternative to the death penalty. The appearance of this new punishment occurred simultaneously with the rise of flogging as the main form of penalty among the five punishments for the heavier offenders, a sign that the existing system of the Five Punishments was in the course of reorganization. This tendency resulted in the new penal system, nominally the 'Law of Replacement with Flogging折杖法' of the North Song Dynasty. In the new code, the exile system converted to a cross between forced-labor and flogging in actual form, rather than real banishment from society. Seen from the course of history, it can be determined that the 'Exile after Flogging' is a transitional penal system that appeared in the midst of the transformation, deserving of more attention than has thus far attracted.

영어초록

The system of exile is next in severity only to the capital punishment among the Five Punishments; it is the act of obliterating the offender's social life by banishing him to a 'far off place' and thereby separating him from his livelihood. Accordingly, statutes and articles concerning exile is detailed and various, specifying the place of exile, convoy to the place of exile, the nature and duration of labor to be endured, possibility of accompaniment of family members, terms for return, etc. Nonetheless, the application of the system far exceeded the written principles; the desires of the emperors of the Tang dynasty to win reputation as a ruler of 'magnanimous punishment' had great effect on the general system of exile.
Being a ruler of 'magnanimous punishment寬刑' that gave out punishments 'magnanimously and discreetly' had its focus mainly on capital punishment. A ruler that did not use the death penalty indiscriminately, thus adhering to the rule of 'not being able to bear killing不忍刑殺', was considered the mark of governing by benevolence仁治. This reluctance to apply the death penalty necessitated the use of exile as a more humane alternative. Herein lies the root of the problem; the exile was not as severe a punishment as could function as a replacement of, to some point, the death penalty.
The exile is not as visible, or direct a form of punishment as the death penalty or flogging. In the first place, convoying the offender to the place of exile was a long, difficult journey, and government officials were unable to prevent accidents such as escape of the offenders, without massive administrative investment. Frequent grants of clemency, regulations that allowed offending government officials to return to post after a 6 year period of exile, with indeterminate serving terms for the layman, all resulted in diminishing the penal effect of exile. In order to complement these shortcomings of the exile system several alternatives were contrived; 'Extended Exile長流', 'Death Grant賜死' and 'Exile after Flogging決杖配流'.
'Extended Exile長流', exile with a longer period for stronger punishment, is a term that does not appear in the Tang code, corroborated only in execution records. Although the strengthened punishment was established with the intention of restraining the possibility of return to normal society, giving the exile a character of a life sentence, there remained, albeit limited, possibilities of return by grant of clemency, and even cases of returning to government post after a respectable period. Other methods of eliminating opportunity of returning to society became necessary; resulting in the 'Death Grant賜死'. In the 'Death Grant', the offender reaches death by order of the emperor, after being sentenced to exile, before, during or after convoy to the place of exile. It has the effect of eliminating the burden of an official death sentence, while overcoming the limits of exile, extended or otherwise.
As another alternative, the system of exile came together with flogging for an instant ascent in the penal effect, resulting in the system of 'Exile after Flogging', an appropriate alternative to the death penalty. The appearance of this new punishment occurred simultaneously with the rise of flogging as the main form of penalty among the five punishments for the heavier offenders, a sign that the existing system of the Five Punishments was in the course of reorganization. This tendency resulted in the new penal system, nominally the 'Law of Replacement with Flogging折杖法' of the North Song Dynasty. In the new code, the exile system converted to a cross between forced-labor and flogging in actual form, rather than real banishment from society. Seen from the course of history, it can be determined that the 'Exile after Flogging' is a transitional penal system that appeared in the midst of the transformation, deserving of more attention than has thus far attracted.

참고자료

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