중국형벌사의 시점에서 본 청말의 형제개혁과 유배형의 폐지(上)

초록

Until recently, the New Criminal Code of the Great Qing was generally viewed through a critical lens. This perspective stemmed largely from two factors: the retreat in legal principles following the li-fa debate, and the code’s failure to abolish consular jurisdiction. However, such evaluations are grounded in the immediate political concerns of the time. When viewed in the broader context of Chinese criminal law history, the reforms assume a different significance. The New Criminal Code marked a pivotal moment when the traditional penal structure — centered on the five punishments — was reconfigured into a new system that continues to influence modern Chinese law. One of the most significant changes was the replacement of exile with imprisonment. In the Qing dynasty, exile was widely used, supported by formalized exile distances and a nationwide system. However, hidden problems such as difficulties in managing exiles and overcrowding at places of exile gradually surfaced. From the 19th century onward, the Qing government began addressing these issues through the issuance of amnesties. The underlying policy orientation — to preserve the broader penal system centered on exile, even at the cost of abandoning exile’s main punitive aspect, namely the indefinite term — remained largely unchanged as late as 1885. Records from that time indicate that discussions focused not on reforming exile itself, but on strengthening administrative control after the sentence had been executed. This suggests that although there was a shared recognition of the need to reform the punishment of exile in the late Qing, its actual abolition took shape only later, as a concrete outcome of the penal reforms in 1905.

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