This chapter focuses on sorting out the words and discusses some basic problems related to clan punishment.
Firstly, the definition of clan punishment is discussed. In view of the different definitions of clan punishment in academic circles, after analyzing the defects of different definitions, the author thinks that "punishment" is a kind of criminal responsibility, the word "clan" has the same meaning as the word "relative", and clan punishment means that relatives have the same criminal responsibility system.
Secondly, it summarizes the general principles of family punishment. Mainly: the first notice is free to sit; If the principal offender dies before execution, the punishment of the person sitting next to him will be reduced. Women, handmaiden, monks and Taoist priests commit crimes without implicating relatives; The woman is guilty of sitting on the ground for her husband's family; Old and young, women and the disabled (deaf) can reduce their responsibilities. Combined with cases, the implementation and enforcement of the above principles in judicial practice were investigated.
Thirdly, it discusses the reasons for the prosperity of ancient clan punishment and the functions and functions of clan punishment. It is believed that the cultural tradition of familism and the social structure based on family are the fundamental reasons for the prosperity of ancient family punishment, and correspondingly, the most important function of family punishment is to maintain this cultural tradition and social structure.
Fourthly, it analyzes the contradictory relationship between clan punishment and concealment system, clan punishment and * * * crime system, and investigates the application of clan punishment in relative crime cases. It is pointed out that because the ancient law does not establish the principle that family punishment is not applicable to relatives' crimes, there is a judicial loophole that victims sit on the hot spot of crimes instead.
Fifth, briefly explain the difference between clan punishment and exile punishment and the complex relationship between them. It is believed that clan punishment and exile punishment have the same genes as relatives, so they can be transformed into each other. The development of exile punishment and clan punishment presents a trade-off relationship, and exile punishment is actually a substitute for clan punishment.
Chapter two: the origin and development of clan punishment.
This chapter introduces the emergence and evolution of family punishment.
Generally speaking, scholars of law and history believe that ancient non-clan punishment and clan punishment originated in the Spring and Autumn Period and the Warring States Period. However, the study believes that the logical starting point of family punishment is family standard or blood standard, and ancient times is a typical blood standard era. The consanguineous organization is not only a political unit, a military unit, an economic unit, but also a legal unit, and the conditions of family punishment are far superior to those of later generations. Therefore, the source of family punishment should be found from the origin of China law. Through the careful analysis and investigation of the records of "Punishment Threatens Four Foreigners" and "Punishment Begins with Soldiers" in the ancient books of the pre-Qin period, the study holds that the punishment originated from war has innate group and consanguinity, is designed for the alien race, and is a collective punishment for the defeated consanguinity group. From this point of view, the initial punishment is clan punishment, so there is a saying that "clan punishment begins with soldiers"
At the beginning of the Zhou Dynasty, all ethnic groups lived together in a country, and people often took the teacher as their surname, so the original clearly identifiable relationship between the same family and the different family gradually became difficult to identify. Moreover, political and military struggles not only occur between different races, but also between the same race, such as the political struggle between the monarch and the public, so punishment also applies to the same race. This shows that clan punishment has completed the transformation from safeguarding racial interests to safeguarding national interests. During the Spring and Autumn Period and the Warring States Period, there was a clan punishment system in the written laws formulated by various countries. During the Qin and Han dynasties, the application of clan punishment reached its peak, and almost all charges were applicable. The forms of clan punishment are also divided into three levels: three foreign families, three foreign families and wife and children, which can be called the era of pan-clan punishment.
When Lv Hou and Emperor Wendi were in power, the clan punishment system changed a lot. Emperor Wendi abolished the collection law, that is, ordinary crimes no longer affected relatives, and felony crimes were subject to clan punishment. During the Wei, Jin, Southern and Northern Dynasties, most of the crimes punished by clan punishment were serious crimes (treason, immorality) that seriously violated Confucian ethics. Although minor crimes such as theft sometimes involve relatives, the scope of application of family punishment is still developing in the direction of punishing major crimes in terms of development trend. In the laws of Sui and Tang Dynasties, it is clearly stipulated that the crimes of principal offenders and relatives include treason, treason, informing on thieves, murdering three people who are not guilty of capital crimes, helping others and poisoning animals, all of which are major crimes of disloyalty and injustice. At this point, the family punishment has completed the process of Confucianism, that is, the "final ceremony." The family punishment system in the Song, Yuan, Ming and Qing Dynasties almost copied the provisions of the Tang law, but there were some minor adjustments in the scope of applying charges and implicating others.
Chapter III: The scope of collective punishment.
This chapter focuses on the changes in the scope of family punishment.
The scope of collective punishment is a very complicated issue. Since ancient times, people have been accustomed to using relatively vague concepts such as "three clans" and "five clans" to summarize the scope of clan punishment, while the scope of clan punishment in the code is generally clear to specific relatives such as parents, brothers and wives. The research holds that the investigation of the implicated scope of ancient clan punishment should be based on the provisions of the Code, but the generalization of "three clans" is reasonable and correct, although it is not accurate. In a sense, the three clans are the basis for the code to determine the scope of clan punishment. Therefore, the investigation in this chapter considers the customary weighing methods and specifications.
Primitive clan punishment is a tool of racial struggle, and the failed races are all within the scope of punishment, so there is no clear scope of involvement. Since then, the punishment and scope of clan punishment are mostly group (same clan) relatives. Because the group lives within three generations, its scope can also be said to be the same generation. The so-called "three clans" are just the renaming of three generations of the same clan, and its scope can generally be expressed in the shape of "Tian": taking the principal as the center, the upper is the parents, the lower is the children, the left is the brother and the right is the sister, forming a "cross" shape; Add uncles and aunts at the top left, aunts at the top right, nephews and spouses at the bottom left, and nieces at the bottom right, just forming a "field" shape. During the Spring and Autumn Period, Warring States Period, Qin and Han Dynasties, the scope of collective punishment was generally limited to the shape of "Tian", but the collective punishment for general crimes was reduced to the shape of "cross". Since the Wei, Jin, Tang and Song Dynasties, although the scope of family punishment has changed from time to time, it has generally developed to both ends on the basis of the "Tian" shape. Minor crimes only involve the wife, while serious crimes extend to grandparents and grandchildren, which is customarily called "Shen" shape, but the married women in this family do not belong to this fate. The scope of the law of Ming and Qing Dynasties is slightly similar to that of Tang and Song Dynasties, but it has expanded the scope of the law of Ming and Qing Dynasties, adding cohabitants on the basis of the "Shen" shape for the case of rebellion. However, because the two usually overlap, the scope of application of Ming and Qing laws is actually still "Shen" on the whole. No matter the cross-shaped, field-shaped or letter-shaped collective scope, it is inseparable from the foundation of the three families, so the three families can be regarded as the constants of the collective scope in ancient China.
Of course, the names of "three families" and "five families" are only general terms for the scope of family punishment, and they cannot completely match the specific scope of family punishment in the code. At the same time, in the ancient code, there are many kinds of charges applicable to clan punishment, and the scope of each charge is also very different. The names of "three schools" and "five schools" cannot completely cover all kinds of complicated collective punishment situations, nor can they reflect the differences in the scope of collective punishment. Therefore, the specific scope of punishment stipulated in the Criminal Law is also detailed in this chapter. And pay special attention to the problem of "secondary collective punishment" hidden in the code "collective punishment" for analysis and discussion.
Chapter four: the alternative punishment of clan punishment-exile punishment.
This chapter aims to explain the nature of exile punishment and how to replace clan punishment as the main way of involvement.
In ancient Chinese law, the joint liability of the relatives of the principal offender can be divided into two categories according to its nature: one is criminal liability, such as being sentenced to death, escaping, being imprisoned, failing to be taken into custody, etc. The same punishment as the principal offender, so it can be called family punishment. The other is non-penalty liability, which applies to the relatives of criminals sentenced to exile, distribution or exile. Although they are not prisoners in the legal sense and have not been sentenced to punishment, according to the law, they must go with the principal offender. Strictly speaking, the relatives of the principal criminals in exile are jointly and severally liable, but they are only responsible for not punishing them, which cannot be called family punishment. However, exile punishment and clan punishment have the same gene, which can not only be transformed into each other, but also have the tendency of clan punishment. In judicial practice, exile punishment is actually applied as a substitute punishment for clan punishment.
Exile has a long history, but from the Spring and Autumn Period and the Warring States Period to the early years of the Western Han Dynasty when clan punishment prevailed, there was not much market for exile. After Emperor Wen of Han reformed clan punishment, exile punishment became a common punishment measure. The reform of Emperor Wendi ended the era of pan-clan punishment and opened the door to reduce the types of crimes committed by clan punishment. Since then, although there have been many cases of extrajudicial punishment, crimes and relatives of criminals, there are not many crimes in the laws of various dynasties that clearly stipulate that criminal responsibility of relatives of criminals should be investigated.
In ancient China, it has become a social knowledge and tradition to investigate the joint and several liability of criminals' relatives based on family. The decrease in the types of family crimes in the law makes it difficult for the Confucian family ethics concept of "one glory and one loss" to be fully reflected in the law; However, if we increase the types of charges of clan punishment, it is suspected of torture and cruelty, and it is also inconsistent with the Confucian thought of "cautious punishment". Exile punishment just meets this contradictory demand of Confucianism: the relatives of exiles must go with the principal offender, in line with the requirements of "one glory, one loss"; Moreover, this kind of punishment is not a punishment in the sense of punishment, and it does not violate the requirement of "cautious punishment".
Therefore, after the mid-Western Han Dynasty, the status of exile rose rapidly and became a universal punishment. In the Southern and Northern Dynasties, it officially became one of the five legal punishments. Since then, exile has developed into stabbing, exile, dispatch and dispatch, and its scope of application has also been expanding. In northern Song Shenzong, there are more than 200 articles about assassination and matching; By the time of filial piety in the Southern Song Dynasty, it had grown to more than 570 kinds. In the case of banishing the army for those who really committed capital crimes, published in the thirteenth year of Wanli in Ming Dynasty, there were as many as 263 banishment clauses, which almost reached the point where all crimes were applicable. At this point, the ancient Chinese law has completed the transformation from emphasizing criminal responsibility in the early stage to emphasizing non-criminal responsibility in the later stage.
Looking at the development and changes of ancient clan punishment and exile punishment, this study finds that there is an obvious relationship between their development: when punitive collective punishment such as clan punishment flourishes, non-punitive collective punishment such as exile punishment always takes a back seat; Whenever the punitive collective punishment is weakened, the non-punitive collective punishment will inevitably develop rapidly. This not only embodies the essential characteristics of ancient law, but also proves that exile punishment is a substitute punishment for family punishment.
In a word, attaching importance to the joint and several liability of family members is the essential feature of ancient laws in China, but its manifestations are different in the earlier and later periods. The joint liability of the former dynasty was mainly criminal liability (clan punishment), while the latter dynasty was mainly non-criminal liability (exile punishment).