The Case of Guillotine and the Litigation Culture of the Song Dynasty

[Abstract] The study of litigation culture is an important way of comparative study of litigation systems. The study of litigation culture must draw nutrition from the broad social life and social thought. The litigation concepts, operation methods, rules and regulations, as well as the facilities and equipment embedded in some classic cases in ancient times have become the breakthroughs in the study of litigation culture.

[Keywords]Litigation culture, self-determination, mediation, trial

The Case of Guillotine Beauty, also known as Qin Xianglian, is one of China's traditional operas, which tells the story of the death of Chen Shimei, a man from Junzhou (present-day Danjiangkou) in the Song Dynasty, who was guillotined to death by Bao Gong for disowning his ex-wife. Through the whole drama, the legal culture can be glimpsed through the value conflict between ethics and morality and law under the ancient patriarchal system, the contradiction between the rule of man and the rule of law in feudal society, as well as the conflict resolution mechanism of social conflicts. This paper intends to take the litigation procedure triggered by the conflict between the relevant characters of the Guillotine Case as the main line of research, and conduct a systematic research on the litigation culture of the Song Dynasty through the analysis of the characters in the case.

I. Pre-litigation Dispute Resolution Procedures

Looking at the case, before Qin Xianglian went to Kaifengfu to ask for judicial intervention, she took a series of measures in order to reunite with Chen Shimei. Since the original purpose of Qin Xianglian's trip to Tokyo was to search for Chen Shimei and resume her marriage with him, the methods she used during this period - self-determination and mediation - were in nature mechanisms for handling civil disputes.

1. Self-determination

The so-called self-determination means that the subject of a dispute relies on his or her own strength to resolve the dispute in order to safeguard his or her rights and interests. Unlike reconciliation, it emphasizes that one party to a dispute subject makes the other party obey by virtue of its own strength. Qin Xianglian, with her two young sons, attempted to enter the Mu Chi Palace where Chen Shimei lived, and here she adopted the procedure of self-determination. Analyzed in detail, the reason why Qin Xianglian tried to use her own power to make Chen Shimei submit at the beginning is threefold: first, she had fulfilled the obligation to Chen Shimei's parents to give birth, raise, and bury them, and "mourned them for three years"; second, she and Chen Shimei had two children of the age of the total angle; and third, the feudal social etiquette of "a chaff wife is not allowed to live in the hall". The chaff wife does not go down", Chen Shimei after all did not handle the formal procedures for repudiation of his wife. Therefore, a never seen the world of the countryside Jing woman dared to trespass in the hierarchical hierarchical society extra horse harnessed by the side of a team of horse harnessed by the side of a team. However, Qin Xianglian never thought, "towards the field house Lang, twilight to the Hall of Heaven," Chen Shimei is no longer in her heart that year, the pure and simple and generous scholar, overnight fame and the emperor's side harnessed by the side of a team has made Chen Shimei's mentality has undergone a great change. In his mind, the contrast between Qin Xianglian, a village girl from the countryside, and the imperial aunt, a princess, is stark. This can be seen in Qin Xianglian's lyrics:

Qin Xianglian, look up and see the golden branch and jade leaves in front of you

Wearing a crown of emerald green on her head, and wearing a shirt of sun, moon and dragon and phoenix

She's as bright and colorful as the peony in three springs, and I'm as hardy as the plum blossom in the snow

Looking at her, I see me again, and my half-skirt can't hide me tightly

No wonder robbers changed their hearts, she is young and beautiful, with great power.

Freud said that our nature determines that our strong feelings can only arise from contrasts, not from one thing. Thus, Qin Xianglian's so-called "self-determination" of those capitals in the stark contrast appears insignificant, she attempted to use her own power to sensitize Chen Shimei for the return of the prodigal son's fantasy in the face of reality is unbearable. But the good thing is that the sky is the limit, the timely appearance of the Prime Minister Wang Yanling, so that the pre-trial procedures have not been exhausted.

2. Mediation

Wang Yanling learned of this matter and took in Qin Xianglian mother and son, and then borrowed the opportunity to enter the Mu Chi Palace for Chen Shimei birthday celebration, Qin Xianglian with the identity of the songstress to bring in, and then fully used the means of luring snakes out of their holes in the emperor's side by the side of a team of horse harnessed by the side of the emperor in the Mu Chi Palace of the Chen Emperor to direct a "mediation play". For Qin Xianglian, the intervention of the court administrators gave her renewed hope. When she saw the imperial aunt again, she had sufficient courage:

On the law of the land, I should worship you

On the law of the family, you should send me to the court

Marrying first, then marrying later, there is a big and small

I am the right thing to do and you are the wrong thing to do

If it is said that Wang Yanling's intervention rekindled Qin Xianglian's hope, then it is the system of the law of the family of the feudal society that really made her brave enough to fight against the imperial power. This system, which originated from the patriarchal patriarchal system of clan society, was well integrated with the legal norms of the state as early as the Western Zhou Dynasty, mutually reinforcing each other, and constituting the patriarchal system on which the whole society depended for its existence. In terms of state law, "Under Pu Tian, there is nothing that is not the king's land. As the ruler of the land, there is no one who is not the king's subject", the legitimacy of the marriage assigned by the emperor is unquestionable. Therefore, from the level of national law, although Chen Shimei is "bigamy", but is a legal marriage. However, the patriarchal system does not only include the state law, but also the family ethics and morality. "Men and women are different, and then the father and son are close; the father and son are close, and then the rites are made; the rites are made, and then all things are at peace"; "The rites are the beginning of all things"; the rites that have been formed since the Western Zhou Dynasty have been passed down for thousands of years until the Song Dynasty, when they became y rooted in the people's hearts. The patriarchal system practiced "monogamy and concubinage" in marriage, i.e., there was only one wife. "The Emperor had a queen, a wife, a wife, a concubine, a wife, and concubines, and the common people had to abide by them. Chen Shimei married Qin Xianglian was "parents' orders, matchmaker's words", is the identity of the rightful wife. And "three not to" system to Qin Xianglian's marriage and a layer of amulet. The so-called "three no-go" system refers to "holding the funeral of an uncle or aunt", "marrying a lowly woman and then a noble one", and "receiving something but not returning to it". "If one of these conditions is met, the husband is not allowed to have a wife. Qin Xianglian can be said to have all three conditions, especially after Chen Shimei threw his father and abandoned his mother, "and more three years of mourning", in the revered filial piety of the feudal society is Qin Xianglian's killer app. When she pinpoints the paradox and the essence of the problem, the sharp contradiction between the two pillars of the patriarchal system - the law of the land and the law of the family - becomes clear. The foundation of the whole society is about to collapse because of Qin Xianglian's appearance. Under the patriarchal system, the law of the family and the law of the state have always been harmonized, and in terms of value choices, the meaning of the family is to exist for the state. When the interests of the two conflict, it is always the family that takes the initiative to make sacrifices. So when Qin Xianglian insisted on upholding the so-called ethical justice, the failure of mediation was a normal result of the development of events. And it drove Chen Shimei to a point of no return: family ethics and morality is his fatal point, Wang Yanling's acceptance of Qin's mother and son is equivalent to hanging a sword over his head, and when he sent out his family's general, Han Qi, to hunt down his wife and son, it was one step closer to Bao Zheng's tiger-head guillotine.

The initiation and operation of criminal proceedings

The Chinese have a traditional value of "aversion to litigation" or "shame of litigation". As early as the Spring and Autumn Period, Confucius said: "To hear lawsuits, I am like a human being, I must also make no lawsuits." Confucius hoped that through long-term moral and ethical indoctrination and the example of the ruling class, the litigants would be ashamed of litigation, so as to achieve the ideal state of harmony and tranquility of "no litigation in the alley of the coccyx, no litigation in the court of the young and the old," with the universal application of Confucianism in China after the Han Dynasty and the supremacy of Confucianism, the idea of aversion to litigation has also become an integral part of the traditional Chinese culture. The idea of aversion to litigation has also become an integral part of traditional Chinese culture. However, Mr. Su Li believes that the aversion to litigation as a social phenomenon is not the product of a concept, but a behavioral posture or behavioral habit formed under certain constraints, and to change this social and legal phenomenon, so that people are able and willing to appeal to the formal legal system, the important thing is not to raise the citizens' awareness of their rights, or the so-called publicity of the law, informing the citizens of their rights, but to provide a means of appeal, and to provide a way of appeal, so that the citizens are not aware of the rights they have, but to provide a way of appeal. Rather, it is important to provide a means of recourse, and more importantly, a legal system that is a functional alternative to the original means of dispute resolution, including formal litigation and other non-litigation mechanisms, to actually obtain or enjoy such rights. There is a scene in The Case of the Guillotines where, after a failed mediation attempt, Wang Yanling hands Qin Xianglian a folding fan and tells her to use it as a token to go to the Kaifeng Palace to find Bao Zheng to petition the court. It is the help of the Prime Minister that gives Qin Xianglian the courage to continue her pursuit of "justice", which also implies that even in the "clear as water, clear as a mirror" of Lord Bao, the outcome of the petitioner's background or lack of background is also very different.

1. Telling and accepting

After exhausting her self-help and social remedies, Qin Xianglian not only failed to pursue the so-called justice, but also almost got herself killed, so she had to bring a token from Prime Minister Wang to seek the last relief procedure - to go to the Kaifeng Palace to beat the drums of injustice and seek judicial remedies. In the Song Dynasty, there is no specialized prosecution of the authorities, generally by the victim or his close relatives directly to the government to file a lawsuit or by all levels of government to correct the crime, and cause the litigation process to start there are four main factors: self-reporting, is the victim and his family members to the government to report; third-party denunciation, is the person who knows the government to denounce the crime of another person, China's ancient history has always been "rewarded for suing*" law, which is the subject of the government to report the crime of another person. Ancient China has always had the law of "rewarding the informer", which is a kind of obligation of the subjects to the state; Surrender, is the offender to the government to present himself to the crime. Qin Xianglian in "Guillotine Cases" used the form of self-reporting and triggered the initiation of criminal proceedings. Here the tell and accept similar to China's current criminal procedure law in the filing system. Filing is the initiation of the criminal procedure, the investigating authorities on the report, accusation, report, surrender and the material of the prosecution of the private prosecution of the examination, that there are criminal facts and the need to pursue criminal responsibility, that is, you can start the investigation process. Upon receiving Qin Xianglian's telling, Pao Zheng investigated the evidence related to the case in accordance with the laws of the Song Dynasty. The criminal evidence system of the Song Dynasty was based on verbal evidence and physical evidence as the form of evidence, and verbal evidence plays a decisive role in judicial practice. Song dynasty verbal evidence, including the original, the defendant's confession and statement and witness testimony, which the defendant's confession and the plaintiff's statement is the basic basis for the conclusion of the case, and witness testimony in the use of the defendant is limited to "not tortured", and in the number of evidence must be "crowd evidence", that is, "more than three people", "more than three people". That is, "more than three people, the name of the right thing, before the conviction". The theory of physical evidence in the Song Dynasty is still far from mature, in judicial practice only as an important supplement to the use of confession. In this case, Qin Xianglian's prosecution itself is the plaintiff's Chen, Wang Yanling to Qin's fan can be used as a witness testimony, although not "evidence" and the form of words, but on behalf of the prime minister's position, its implicit effect is obvious. But from the point of view of judicial proof, only the plaintiff's prosecution and witness testimony without the defendant's confession and can not meet the criteria for the conclusion of the case, Mr. Bao mumbled the way of the law, and Chen Shimei's return to the case has become an urgent matter.

2. Arrest

"Song Penal System" stipulates that: once the case to the government office, the presiding magistrate must be summoned to the relevant witnesses in a timely manner, the arrest of the original, the defendant and the two made in order to record the confession, understanding of the case, and make the offender to be effectively incarcerated. From here we can see that the arrest in the Song Dynasty law is equivalent to the detention and arrest in our modern criminal procedure.

According to the provisions of the Song Dynasty law, Bao Zheng could have sent someone to arrest Chen Shimei. But Chen was an emperor's son-in-law and had a royal family background behind him, which was something that Bao Zheng had to worry about, and before the case finally came to light, the rules of the game in the officialdom were something that Bao Zheng did not dare to violate easily - the friendship of colleagues on the face had to be carefully taken care of. So the conventional way of arrest is absolutely can not be used, so Pao adults find another way to trick Chen Shimei to Kaifeng House. In this way, once the defendant arrives in court, Lord Pao can rise to the court to conclude the case.

3. Trial

From the judicial practice of the Song Dynasty, in the case of the two with, the evidence is more sufficient, then enter the stage of hearing the case. In addition, in China's feudal society, local authorities at all levels of administration and justice, local judicial trial activities generally also have the chief executive. Song Taizong Taipingxingguo 9 years (984 years) in July under the edict: "the Imperial Palace of Justice to survey public affairs, when it is necessary to push the Imperial Palace of Justice and face to face to survey, shall not be hanging curtains, only commissioned by the Secretary to take the certificate". That is, the central judicial organs must be personally involved in the trial. Trial activities of the magistrates also made similar provisions. Bao Zheng, as the prefect of Kaifeng, according to the law, should personally sit in the hall to determine the case.

In China's ancient litigation system of investigation and trial, the task of the trial is to investigate, review all kinds of evidence, interrogate the defendant. And among all the evidence, the defendant's confession is the most crucial. In feudal China, without the defendant's confession, it is often impossible to convict and sentence. Therefore, in order to obtain the defendant's confession during the court trial, the law expressly provided that the confession could be extracted by torture and, in terms of the applicable object, the law allowed the torture of the magistrate. In this case, after Chen Shimei arrived at the court, Bao Zheng has a paragraph of the husband from the road: "that day at noon door we two at the same time to the king to accompany, I observe you a high eyebrow to a low eyebrow, it is determined that you must have a former wife at home." A word of truth: the package adults simply do not need the so-called "five hear" way "to the feelings of the review of rhetoric, repeated verification", when the Qionglin banquet on the occasion of the drink Bao adults formed a "free heart evidence "

The appearance of the royal aunt and the country too make the event seems to have a slight turnaround. After all, they have the status of the royal family, enough to represent the will of the emperor at certain times. Moreover, in the feudal society, which is characterized by the trinity of "Divine Principle, Humanity, and the Law of the Land", the value of reason is higher than that of the law of the land when it is in conflict with the law of the land. Under the strong political pressure of the royal family, Pao's belief in the rule of law was once shaken, and he tried to settle the case by court mediation. However, the irreconcilable contradiction between the ritual and the law under the patriarchal system doomed the mediation to failure. Bao Zheng had to make a choice between the law and rituals. The three major sins of Chen Shimei are: first, killing his wife and son: he sent Han Qi to assassinate his wife and son, which failed due to Han Qi's suicide, which is an attempt of intentional homicide; second, deceiving the emperor and being reckless: he concealed the fact that he had once married a wife and deceived the emperor by marrying an imperial aunt, which undermined the dignity of the emperor and was among the "ten evils" in the "ten evils". "in the" great disrespect ", although the imperial aunt, the plea of the state shows that has been forgiven; Third, the father abandoned his mother not filial piety. These three big sins weight, enough to put Chen Shimei on the tiger-head guillotine.

4. Execution

When the value of the law is in a strong position, the iconic props that have accomplished Pao's culture of being a clean official - the three brass guillotines can make their appearance. Three copper guillotine as named on the ancient costume theater, alias dragon head, tiger head, dog head guillotine, dragon head guillotine dedicated to guillotine imperial relatives, tiger head guillotine is used for guillotine civil and military officials, dog head guillotine is used to deal with ordinary people. In the hierarchical Song Dynasty, the three guillotines were given different missions, and their own deterrent function made them an integral part of Pao's authority.

Can the death penalty be carried out immediately after the verdict is made? From the practice of feudal society and the provisions of the Song Dynasty law in the procedure can be known to hold a negative attitude. There are two reasons: First, our feudal society on the execution of the death penalty, the implementation of the "spring after the death penalty", "autumn and winter execution" system. "Confucianism believes that "the king kills, it is appropriate to follow the gas", so the execution of the death penalty is generally in the fall after the frost, before the winter solstice, because this time "heaven and earth began to purify", the murderous gas has arrived, it can be "Shen strict hundred punishment", to show the so-called "Shun Tianxing execution". Secondly, the Song Dynasty on the execution of the death penalty provides for the review and re-presentation of the two previous procedures. For the death sentence made by the state-level authorities, the Ministry of Justice or the Department of Justice must be reviewed and agreed to before execution; in addition, during the years of Emperor Zhenzong and Emperor Renzong of the Song Dynasty, the review system of the death penalty was implemented in the capital area, and for the death penalty cases adjudicated by the Kaifeng Prefectural Government, the death penalty cases had to be reviewed to the central government, and could only be carried out with the consent of the Emperor's ruling. In this case, the period of execution of Chen Shimei is not available, but the violation of the law in the procedure is obvious. It was not that Bao Zheng was unaware of the provisions of the law; on the contrary, it was out of fear of the emperor's personal intervention (and then the emperor's imperial decree really came) that he broke through the legal barriers and guillotined Chen Shimei immediately after the verdict was issued. In this way, in the emperor's rule of man (the imperial aunt, the obstruction of the state too, as well as the emperor's imperial decree to intervene), Bao Zheng's rule of man (unauthorized execution in violation of the provisions of the law), as well as the rule of law of Bao Zheng (in accordance with the provisions of the law to make a just verdict) entangled together, reflecting the feudal society, the rule of man and the rule of law contradictory competing state.

Third, conclusion

The study of China's ancient litigation culture, on the one hand, can enable us to understand the era of litigation related social concepts, historical habits, ideals and beliefs, and litigation to solve the social conflict of social life, so as to grasp the development of China's litigation system of the historical trajectory of change, and on the other hand, through the ancient and modern litigation culture, help us grasp the litigation model of the inner life and the operating mechanism. In addition, through the ancient and modern litigation culture, it helps us to grasp the inner life of the litigation mode and the operation mechanism. Such as why the modern criminal procedure to take speed trial separation, defense against the prosecution and the form of evidence adjudication, but not to take the ancient investigation and trial, torture to force confessions, the presumption of guilt of the inquisition form, limited to the legal system evolution process itself is difficult to understand, but if we change the angle of the research problem - from the litigation culture point of view, we can fairly grasp the litigation system. Can grasp the soul of the litigation system to a considerable extent, and I believe that this also has a certain reference to today's judicial reform in our country and even reference significance.

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