唐律을 통해 본 唐代 免罪型 自首의 成立條件에 관한 一考察

Abstract

The surrender system provided criminals with an opportunity to surrender and to reap the legal benefits, while it functioned as an institutional device for the authorities that could reduce the cost, manpower required for criminal investigations. in this article, the general principles of surrender in the Tang Dynasty, or the establishment conditions of the Exoneration Type Surrender which exonerated one''s offense if one surrendered as per the establishment conditions, and their meanings were analyzed. In addition, “Buzaizishouzhili(不在自首之例)”, which is not validated as an Exoneration Type Surrender even when the establishment conditions of the Exoneration Type Surrender are fulfilled, was reviewed. A noteworthy point from the Tang Code''s surrender system is the general principle and establishment condition which state that when one surrenders oneself before one''s crime is exposed, one''s offense is exonerated. This article defined surrendering when one''s offense has not been exposed in order to get exonerated as Exoneration Type Surrender. The meaning of the Tang Dynasty surrender system''s general principle law: "If one has committed an offense, but surrenders before getting exposed, the offense will be exonerated" explains the broad principle, which defines the idea that surrendering when one''s offense has not been exposed should be prioritized. The connotation of the underlying meaning that the offense will only be exonerated if one surrenders and at the same time fulfills the various establishment conditions after committing an offense was examined. It is the opinion of the author that the term “Budechengshou(不得成首)” does not simply mean that surrender cannot be validated at all. Rather, it needs to be understood that the establishment conditions for surrender, which can validate the Exoneration Type Surrender resulting in the exoneration of an offense, are not fulfilled. In order for a surrender to validate the exoneration of punishment, there are conditions to be met. Firstly, one needs to be in the state of before one''s offense is exposed. Secondly, one should surrender at the jurisdictional site to the authorities. Thirdly, “Zishoubushizui(自首不實罪)” means that one has surrendered but the offense is insufficient and “Zishoubujinzui(自首不盡罪)” which are classified as false statements, should not be made upon testifying. Furthermore, there are instances where the Exoneration Type Surrender cannot be validated even when all the conditions that fulfill Exoneration Type Surrender have been met. The Tang Code regulates this form of offense as “Buzaizishouzhili”. “Buzaizishouzhili” corresponds to the type of offense not included in the introductory remarks of the surrender. One should note that the Tang Dynasty''s surrender system exonerates one''s offense as long as one has surrendered and fulfills the establishment conditions. Furthermore, based on the clause of the exoneration surrender, it can be seen that the grounds for reduction could be very widely applied even if the offense could not be exonerated.