Strong "Three Basic Principles"
Adjust and maintain jun,
Father,
Husband's privilege,
The monarchy is above everything else,
Under the emperor's rule,
All men are concubines,
There is no legal right at all.
Ethics advocates "no litigation"
"interest litigation"
This also leads to people's indifference to the meaning of rights.
Third, the law focuses on punishment.
Shuowen
"Punishment also. As flat as water, leave without touching or leaving.
"Xia, Shang and Zhou Wenxian's" Punishment "
Is the law. In the Spring and Autumn Period, some famous written laws were also called the tripod of punishment.
The book of torture
Bamboo punishment
. Around the Spring and Autumn Period and the Warring States Period,
"Law" has the meaning of law, and
"
law
"
It also appears as the main form of written law, and is gradually widely adopted and passed down.
Downward, after the mid-Warring States period.
In ancient times, the words punishment, law and law were often very common. The official history of past dynasties recorded the "ambition" of legislative and judicial activities.
, called "criminal law record"
(
Shu Wei is called a criminal record.
)
The law is complicated and simple, and the punishment is heavy and heavy, which is often opposite to the replacement of etiquette, as a relationship between the rise and fall of the dynasty.
A matter of life and death, a big book to read. Legal cases are usually called criminal officials,
. From the Sui Dynasty to the late Qing Dynasty before the system reform, the central government was responsible for judicial administration and trial.
The official department is called the punishments department.
In a word, punishment has always been the theme of ancient laws in China. In ancient times, there was no division of departmental laws, and the codes of previous dynasties
-
Legally called punishment.
Law,
All kinds of illegal and criminal acts in all fields of social life,
There are rules here,
Unified crime,
Punishment.
On the other hand,
The autocratic monarch ignored the people's subjective rights,
Ordinary people don't have this kind of consciousness,
And with
"Go to court"
Feel ashamed,
Because I am tired,
General civil disputes have nothing to do with the overall situation of political security.
The commodity economy has been underdeveloped for a long time,
If so, wait,
Because of the ancient folk in China
The lack of legislation is in sharp contrast with the abnormal weight of criminal law.
Fourth, the judicial department is subordinate to the administrative department.
The emperor "has the constitution of heaven in his mouth"
, holds the highest judicial power in the country, as mentioned above. Although the central authorities of past dynasties set up judicial institutions, they assisted them.
Emperors, such as Nakazawa Tomohide, prime minister, prime minister, cabinet minister, etc. , you can ask the judiciary. Directors of some central administrative agencies
Officials can also intervene or participate in the administration of justice, while the Chief Justice has no general right to ask about the administration.
At the local level,
The chief executive of a place is also in charge of judicial trials at the same level.
Song, Yuan, Ming and Qing Dynasties,
Although there is a specialized judiciary at the provincial level
Structure,
But it is still under the control of the local chief executive.
Whether the prison procedure is fair,
Since the Han Dynasty, it has been the main way to assess the achievements of local officials.
One of the projects.
Officials of the central and local governments always,
Honest official,
Besides honesty and diligence,
Many of them enforce the law fairly,
No, powerful people,
He is famous for being good at judging suspicious cases and daring to oppose unjust, false and wrong cases. It is precisely because he is an official of the "people's parents" that he has mastered the judicial power.
Correctly understand China's legal system and its characteristics,
It is a key problem that must be solved to scientifically explain the history of China's legal development.
mirror
Some major defects in the study of China's ancient legal history are mostly related to how to understand China's legal system.
Also in view of China's relevant
Some important issues such as the characteristics of China's legal system are still controversial.
These arguments directly affect whether the study of legal history can go forward.
Develop in a scientific direction. Therefore, it is necessary to continue to explore a series of major issues in the study of China's legal system.
As one of the five legal systems in the world,
Historically, it has been applied to China, Japanese,
North Korea,
Vietnam and other East Asian countries.
Large area, also known as China legal and cultural circle. The legal development in China is basically a statute. The legal system reached maturity in the Tang Dynasty,
At this time, neighboring countries and regions for their own national construction,
Absorb a large number of laws and regulations of the Tang Dynasty,
In general,
Seven,
eight
East Asia,
Characterized by the ubiquity of Chinese character culture,
Take the application of laws and regulations as a universal element and form its own history.
This world. Since then, although China and its neighboring countries have changed dynasties and politics, it has not affected the intake of the legal system.
Therefore, with the formation of China cultural circle in the 7th and 8th centuries,
Has been formed in East Asia,
Binichi
Until modern times.
The earliest known code in China's legal system is generally regarded as a legal classic compiled by Li Kui in the 5th century BC.
, divided into six articles, namely "thief".
Law, thief law, prisoner law, catch law, miscellaneous law, equipment law. Later generations successively inherited and developed. Collection of Tang laws in the seventh century A.D.
The achievements of feudal laws in China played a connecting role. The laws of China in Song, Yuan, Ming and Qing dynasties all inherited the style of Tang law.
Department.
The laws represented by the above-mentioned Tang Law and the laws of other countries based on this law constitute the Chinese legal system.
Due to China law
Culture has always been at the forefront of the world.
Which influenced the development of legal civilization in Southeast Asian countries,
So that China's legal system can be made public.
One of the five ancient legal systems in the world is considered to be the most representative.
The history of China's legal system is consistent with that of China's civilization.
For the historical stage of China's legal system development
On the issue of paragraphs and deadlines, academic circles at home and abroad have been arguing endlessly. In this regard, based on rich literature and underground excavation,
Continue to discuss this academically.
As to the origin of China's legal system,
The views on the stages and limits of development are determined by the social nature and laws of ancient China.
Different attributes have different views.
One view is expounded from the perspective of class and social form analysis.
It is believed that law came into being after the emergence of class and state.
Yes,
However, there are different views on the limitations of China's legal system.
Quite a few scholars believe that the Chinese legal system refers to the ancient laws of China,
Is a slave
The collective name of official system and feudal system,
By the beginning of the twentieth century,
With the disintegration of feudal society,
China's legal system will die out.
Some scholars believe that China's legal system has undergone major changes in feudal society, modern society and even socialist society.
But with the emergence of the legal system, it still exists. Since the founding of China,
Until the new China's socialist laws, all belong to the laws of China.
Department. Chen Chaobi and Chen hold the latter view.
The focus of the debate is actually related to whether China's legal system is a dead legal system.
This is a problem of the current legal system.
From the perspective of social form,
China's legal system should be regarded as a dead legal system,
But if we follow the values of legal culture,
Moreover, the form of expression is relatively independent, and the legal system can transcend social forms. The Chinese legal system is not a dead legal system.
Second, from the perspective of the development history of the relationship between China culture and China legal system.
People think that China's legal system originated in China.
In ancient times before the birth of family property,
However, there are also differences in understanding its development stage.
Chen Jiayuan believes that from Taikoo to the Warring States,
be
The establishment period of China's legal system; From Qin dynasty to the southern and northern dynasties, it can be called a developed period; Sui and Tang dynasties to Ming and Qing dynasties can be called regular; After the late Qing Dynasty,
It can be called the reform period.
Li Zhongsheng believes that,
from
"knotting notes"
From ancient times to Yao,
During the Shun period,
This is the dawn of the legal system in China;
Xia, Shang and Warring States were glorious periods. The development period from Qin and Han Dynasties to Sui, Tang and Five Dynasties; The Song Dynasty to modern times is the following period.
In addition,
There are also many different views on the development stage of China's legal system.
Some scholars believe that in the pre-Qin period,
Qin and Han Dynasties were the period of its formation,
Wei, Jin, Southern and Northern Dynasties are the period of development, while Sui and Tang Dynasties are the period of maturity or finalization.
Song, Yuan, Ming and Qing Dynasties are the continuation period.
Some scholars believe that Song Yuanming
The Qing Dynasty was a period of rigid or declining legal system in China.
Traditionally, law came into being after the emergence of class and state.
But it can't be proved with conclusive reasons.
from now on
Looking at a large number of legal documents of ethnic minorities that have been discovered,
As early as the clan and tribe period,
Mandatory,
Written code of conduct
It has already appeared.
Scholars who believe that law is the product of state and class,
Most of them quoted Engels' exposition on primitive society.
"There is no army.
Teams, gendarmes and policemen, no nobles, kings, governors, justices of the peace and judges, no prisons and no lawsuits. "
This sentence,
As a basis to support his view, he neglected that Engels was referring to the typical matriarchal clan society of Iroquois.
Will, not including the class division that has appeared at the end of primitive society.
When Engels described theseus's reform before the formation of the slave state in ancient Athens,
think
"It is above everything else.
General Athenian national laws based on the legitimate rights and customs of tribes and clans. "
It is pointed out that the law came into being before the state. I think/in my opinion,
about
"Law came into being before the state,
The transformation from ancient customary law to written law in China,
Experienced a long history.
Period "
This view should continue to be explored.
When studying the legal system and the origin of law in China,
The basis should be credible.
Data, not necessarily limited to previous conclusions.
In the history of western law,
"law"
、
The concept of "law" originated in ancient Greece and developed in ancient Rome.
Great, through the Middle Ages, has spread all over the world since modern times. Types of laws other than Western methods, such as Indian law, African law and China law.
Although law once existed in history, it is basically meaningless to the development of western "law" itself. In China,
In his legal history works, law is often considered as
"punishment"
In modern times, it disintegrated after encountering western law and was replaced by western law.
This makes it extremely difficult to talk about the modern value and significance of the legal system in China today.
There are two reasons:
First of all, in the past hundred years, especially in the last twenty years,
China Jurists' Research on China's Legal Tradition
To a great extent, education completely despises or even destroys tradition. What is actually destroyed and despised is the confidence and dignity of the national tradition.
Cut off the lifeline of legal youth and national culture,
The intervention of the source of national spirit,
That young people have been unable to think for thousands of years,
Unable to enter the pass
Unification;
The second is to understand today,
The standards for evaluating China's legal tradition all come from western standards,
Mainly the nature provided by the Enlightenment.
The correct theory,
Social Darwinian view of history.
Using this scale to evaluate tradition,
It can only be cut to fit shoes,
Floating in speculation;
Moreover, this measure is regarded as the ideology or creed of today's legal youth.
According to the tradition in China,
How is it possible to use it
Should we correctly evaluate China's legal tradition?
Legal thought is an important part of China's legal system.
China's legislative and judicial activities in past dynasties,
Be bound by specific laws.
Formulated and implemented under the guidance of ideology. Some writers believe that since the mid-Western Han Dynasty, "morality dominates punishment"
Become legislation,
Guiding principle of justice
And then in the next two thousand years,
Legal thoughts are basically stagnant or even rigid,
The state of decline.
Under the guidance of this viewpoint,
Many works on the history of legal thought limit the research scope to politicians' political and legal thoughts.
Political thought and legal thought
I don't want to make a clear distinction.
Moreover, the legal thoughts of every political and legal figure are applicable without exception.
"Character.
Category attribute
+
political and legal thought
+
Class restriction "is expressed by structural formula, and there are thousands of legal thoughts of various legal figures."
Uniforms. The method and viewpoint of this research obviously go against the historical reality. In the middle and late feudal society, the law was constantly improved.
It is hard to understand that thousands of laws have been promulgated in the past dynasties, but the legal thoughts remain unchanged.
Henry
.
Maine's theory that "social progress is a movement from identity to contract" only applies to some close-range societies, such as
Britain,
Because the feudal identity relationship and the eldest son's inheritance right in Britain gradually gave way to the relationship based on contract.
But in contemporary society,
Yes,
Status is still very important,
It's just that the importance of recognized status has decreased.
And the importance of contracts.
Sexual life has improved.
The contract between common law and civil law is gradually developed from civil tort and criminal behavior.
But in fact,
In China law and Israeli law, contracts have become very important since a very early historical period.
Before the law
The origin of equality for all can be traced back to the Jewish Bible.
The concept of equality in Jewish law has gradually influenced western common law system and civil law system countries.
The development of traditional laws in China is partly the result of the influence of the rule of etiquette and the rule of law.
The rule of law emphasizes equality before the law,
In the Qin dynasty,
New concepts of equality before the law and contractual rights
(No.
Freedom of contract)
The idea has begun to sprout. China's national law developed from the pre-Qin Dynasty to the late Qing Dynasty. Although it was revised many times, it was legalist
The opposition with Confucianism has always existed in the feudal legal history of China. Legalists support "everyone is equal before the law"
, not supported.
"freedom of contract"
Confucianism, which believes in etiquette, values status and morality, despises the law.
But,
Confucian scholars gradually opened up more and more extensive fields in China feudal society.
"freedom of contract"
The field of.
From the Tang Dynasty to the Qing Dynasty,
Although limited by status,
Make most people demand the same rights as other privileged classes,
but
At least legally,
The concepts of equality for all and freedom of contract are still developing.
This aspect of China's traditional law is obviously for
Contemporary China society has a guiding role.
China's ancient autocratic laws were characterized by the ruling class's over-emphasis on people's legal obligations,
For the sake of the people
However, legal rights are often ignored, and the imbalance between rights and obligations has caused the opposition between the people and the government since ancient times.
Resist.
However, at certain times,
Due to the special political environment,
When people's rights do not threaten the security of the ruling class itself
All-round learning,
Some rights of the people will also be recognized by law,
The right of association of ancient people in China was formed under the autocratic system.
A right that is hard to exist.
Judging from the ancient people's associations in China,
Ancient people in China had their own spiritual beliefs.
The desire to pursue social equality
Legal consciousness,
Have a legal awareness of attaching importance to rights,
Enthusiastic participation in social welfare undertakings,
A person who manages social and public affairs.
Ability,
Have the character of honesty and trustworthiness, as well as the awareness of understanding national laws, observing laws and social morality. Look at ancient China
Society,
Although the ancient folk organizations living in the crevice did not have an important influence on the historical process of China,
But it gave it to future generations
Left a lot of questions worth thinking about.
Only by truly establishing a society in which rights and obligations are balanced,
To achieve the end of society.
Beauty and harmony, from the historical experience, promoting the rapid development of non-governmental organizations is the only way to a harmonious society.
Scholars of law and history often say that the combination of administration and justice is an important feature of China's traditional law.
Foreign scholars also have many comments on this.
but
In fact, as far as the central system is concerned, until the Tang Dynasty, the judiciary, supervision and administration were not unified, and the judicial system had officials and officials
Particularly developed and independent.
Before the Tang Dynasty,
Although inspectors occasionally infringe on magistrates,
But it was quickly corrected, reflecting that
"The case of judicial independence.
Purpose "
. However, after the Tang Dynasty, this system was destroyed and the judiciary gradually lost its independence. As far as the local system is concerned, the Tang Dynasty was divided into two levels: county and county.
After the political system was broken, the local government set up an official position specializing in justice. In the Ming Dynasty, capital, cloth and press were tied together, and in the Qing Dynasty, it was the governor.
Although he is actually a very long official,
Still belongs to the central system officials,
The rights of the former shall not be infringed. Therefore,
General discussion no
It can reflect the traditional laws of China, especially the judicial reality.
The mutual growth and decline of judicial power and administrative power in traditional laws of China.
This relationship should also be carefully examined.
The basic clues and laws of the formation and development of China's legal system,
There are also some different views in academic circles.
Among them, it needs to be discussed.
An important question is,
Some writings believe that the legal system did not develop greatly after the Tang Dynasty.
In fact,
Song, Yuan, Ming and Qing Dynasties were the Middle Ages.
China's feudal legal system is moving towards a more mature period.
It is also a period of further improvement of China's legal system.
With the development and progress of productive forces
The emergence of the seeds of capitalism in the middle and late period,
A large number of economic laws have been promulgated,
It involves a wide range of contents,
Rejected by the previous generation
And ... With the strengthening of centralized system, administrative legislation has been improved in many aspects. In the civil law, local regulations, township
The development of civil contract, family law and civil contract is amazing.
It's criminal law,
No matter from the content or code.
There are also innovations and developments in the compilation style. In this historical period, the laws of Liao, Xixia, Jin, Yuan and Qing dynasties were integrated into society.
Khitan, Nuzhen, Mongolian culture and their customary laws reflect the characteristics of China's legal system of creating China. Therefore, no.
We can only belittle the development of laws after the Tang Dynasty according to a few laws.
Throughout the history of legal development in China for thousands of years, we can see that the legal system is constantly changing and improving with the development of society.
Yes
As the development of history is tortuous and complicated,
Law is influenced by various factors in its development,
Also exists
A very complicated phenomenon. Generally speaking,
"Keeping pace with the times and constantly developing and perfecting" is the expression of legal thought and legal system.
The main theme of progress.
On the surface, the legal provisions are static,
The formulation and implementation of laws have always been dynamic.
that is
It was a period when the national political situation was relatively stable.
With the development of social economy and judicial practice,
In the process of gradual development
Exhibition and perfection,
Has not stagnated.
Therefore,
We should demonstrate the continuous improvement of China's legal system from the viewpoint of development and change.
History, expounds the history of China's legal development.
of course，
In the middle and late period of feudal society, the Confucian legal ideas were pursued in successive dynasties.
Its development and changes are carried out under the framework of Confucianism.
In the picture frame. But with the development of social politics,
With the constant change of economic and cultural conditions and the need of governing the country, Confucian legal thought also
Adjust and change.
For example,
Formed in the Song Dynasty,
Neo-Confucianism prevailing in Ming and Qing Dynasties,
It had a great influence on China's legal system;
Management,
Economy,
Civil,
Military legal thought has been further developed;
After Zhu Xi's elaboration, the criminal bribery thought in Ming Dynasty,
Emphasize punishment before teaching,
It became the theoretical pillar of heavy code in the early Ming dynasty;
Jurisprudence in Ming and Qing Dynasties became a specialized knowledge.
Lu renming
He Guang's Legal Interpretation and Doubt
, Wang Kentang's "Interpretation of Statutes"
, Lei Menglin, "Reading and Speaking"
; Wang Mingde's Interpretation of the Laws of Qing Dynasty
be dressed
*
》
A large number of works, such as Wu Tan's General Examination of Laws of Qing Dynasty, have made achievements in jurisprudence to varying degrees. There are a large number of existing
The judgment of the case and the record of the topic also contain extremely rich judicial thoughts.
The most important achievements of Ming and Qing dynasties in the field of legal thought,
Is the theory of establishing the relationship between laws and regulations,
This theory has been guiding for a long time.
Legislative and judicial activities.
Therefore, we should broaden our horizons and study the history of China's legal thought from the perspective of development and change.
Further explore the ideological essence contained in Chinese legal system.
Now,
The so-called rule model in China's legal system
"death"
This does not mean that thousands of years' legacy has completely left me.
The world we live in,
On the contrary,
The inherent legal concept still stubbornly supports our daily behavior choice and legal understanding.
Direction,
Therefore, paying attention to the experience of China's classical legal interpretation,
Not only pay attention to the ancient people's understanding of the law,
or
Pay attention to a legal and cultural tradition that has passed away, thus "thinking about the past"
, in essence, attention to it, still
Of course, this is a concern for the cultural reality and legal spirit in which we live.