How to review the history of Chinese legal system

I. Xia and Shang legal system

(1) Xia

1, Xia Dynasty law content: collectively known as the Yu Penalty, referring to all the laws of the Xia Dynasty.

2, slavery five punishment system: is a kind of punishment system prevailing in the ancient Chinese slave society, that is, ink, wakes, amputation, Gong, Dapai five. Among them, the first four are corporal punishment, i.e., physical punishment, and the first four are capital punishment, i.e., life punishment. This system of punishment was so barbaric and cruel that it was replaced by the five punishments of the feudal system in the North and South Dynasties.

3. Judicial system:

(1) The highest judicial officer of the Xia Dynasty was called "Dali", the local judges were called "Shi", and the grass-roots level was called "Mengshi". They were in charge of the central, local and even grass-roots judicial work in the Xia Dynasty.

(2) The prison in Xia Dynasty was called "Huan Tu", and the central prison was called "Xia Tai".

4, the legal norms of the Xia Dynasty: faint, ink, thieves, kill. (There may be cases)

(2) Shang

1, "Shang had a chaotic government, and made the Tang Penalty": "Tang Penalty" is a general term for the slavery law of the Shang Dynasty. The "Tang Penalty" is the legislative ideology of the Shang Dynasty.

2, the Shang dynasty marriage and inheritance system:

(1) a clear determination of monogamy;

(2) inheritance system: the Shang dynasty for the "brother and younger brother, the death of the father and the son following" inheritance system, and "the younger brother and the main, the son following as a supplement. ", that is, the brother put to death brother following, no brother son following, brother died brother son following. Until the time of King Wuding of the Shang Dynasty began to set up the system of the Prince, that is, the end of the Shang Dynasty to establish the system of succession of the first-born son.

3, the judicial system:

(1) the Shang dynasty, the highest centralized judiciary for the "Sikou", ranked in the six ministers; the following set up a positive, history and other judges, local and grass-roots judicial judges are called "Shi" and "Mengshi". The local and grass-roots judicial officers were called "shi" and "mongshi".

(2) the Shang dynasty prisons to the Xia system is still called "HuanTu", and there is a special prison, called "prison".

Second, the Western Zhou legal system

1, legal thought: the summer and Shang "days to discuss", "heavenly punishment" the idea of theocratic law, put forward the "virtue with the sky", The political and legal ideas of "virtue with heaven" and "virtue and prudence in punishment" were put forward. In the form of law, it is advocated that "rites" and "punishment" should be used together, where virtue is equal to rites. At the same time, it also embodies the idea that what the people want, the sky will follow, which is the prototype of the "people-oriented" idea. The core of the ritual is to honor and kiss.

2, the patriarchal system: ancient Chinese society exists in a blood relationship as a bond between the family organization and the state system, to ensure that the blood aristocracy hereditary rule of the political form. The patriarchal system was the basic political system of the Western Zhou period.

3, legal form:

(1) Zhou Gong system of rites - respect and kiss. Rites" in the Western Zhou period is an important part of the legal norms, with the state mandatory.

(2) "Lv Penalty" and "Nine Penalties"

4. Penalties: the five punishments of ink, wakes, amputation, Gong, and Dapai were still the main punishments, and formed the "Huan Tu System" and "Jia Shi System".

4. Penalties: the five punishments were still mainly ink, wakes, amputations, palaces, and dabe, with the formation of "the system of wan soil" and "the system of jia shi" as the name of the penalties of imprisonment and detention, as well as ransom, exile, and other systems as a supplement to the five penalties, which was the germ of the feudal system of punishment.

5. Principles of Criminal Law

(1) The Law of Three Amnesties: Reducing and remitting penalties for crimes committed by the young and the old;

(2) The Law of Three Excuses: Distinguishing between intentionality and negligence, and between recidivism and occasional criminality;

6. Criminal policy - "The penalties are light in the world and heavy in the world". "

"Shangshu? Lv Penalty": "light and heavy all penalties have the right to . Penalties are light and heavy in the world". The word "right" means to weigh and measure. Advocates of "the punishment of the world light and heavy" means that according to the changes of the times, according to the specific political situation of the country, the social environment and other factors to decide to use the punishment of leniency and severity, light and heavy. The standard is: the new country, with light code; the penalty of peace, with the middle code; the penalty of chaos, with heavy code". The standard is: for a new country, use a light code; for a flat country, use a medium code; for a chaotic country, use a heavy code.

7, debt and contract

(1) quality agent: used in the sale of the relationship between the contract;

(2) Fu Bei: used in the loan relationship in the form of contract.

8, the marriage system:

(1) the principle of marriage:

A, monogamy and concubinage system; B, the same name does not marry; C, parents' orders, matchmakers' words.

These three for the Western Zhou period of the three substantive elements of the establishment of marriage.

(2) Formal elements:

Six rites: natsui, asking for the name, naji, nazheng, please period, kiss welcome. The first four are for the engagement and the last two are for the marriage

(3) Dissolution of marriage - one-sided right to divorce, upholding the rights of the father and the husband.

Seven out: disobedience to parents, childlessness, lechery, jealousy, malignant diseases, verbosity, theft.

Three no-go's: married but no return; with more than three years of mourning; the first poor and then rich.

9, the inheritance system: ancestral halls of succession, that is, the inheritance of status, property inheritance is attached to the ancestral halls of succession. At this time, the first-born son inheritance system was formally established, that is, "the establishment of the first-born to the eldest not to the wise". The first-born son inheritance system was an important pillar of the Western Zhou patriarchal system.

10. Judicial system:

(1) Judicial officials: the central government was called Da Sikou, and there were small officials such as Sikou and Shishi;

(2) Litigation system: civil lawsuits and criminal lawsuits.

(3) the way of hearing - five hearing: the trial of the case to determine the authenticity of the statements of the parties to the five ways of observation. Including rhetoric, color hearing, gas hearing, ear hearing, eye hearing.

(4) Reading and questioning: In the Western Zhou Dynasty, when a criminal or civil case was heard, the verdict was made into a judgment and read out by the judge in public, which was called "reading and questioning"; after the judgment was read out, if the party concerned thought that the judgment was wrong or there was a grievance, it could ask for a retrial, which was called "questioning". ".

(5) Legal Responsibility of Judicial Officers--"Five Faults"

The "Shangshu? Lv Penalty" recorded the "five faults" system on the legal responsibility of the judicial officer: "Five penalties are not served, stopping at five faults, five faults of the defects, but the official, but the counter, but the internal, but the goods, but to come."

But the official refers to adhering to the will of the superiors, the officials protect each other; but the opposite refers to the use of power to take revenge; but the internal refers to the internal pro-use of the matter, for the pro-favoritism; but the goods refers to the corruption of money, extortion and blackmail; but to the acceptance of the request, perverting the law for favoritism. Whenever a judicial official has one of the five faults, he or she will be punished by the law, and the principle of punishment is "the punishment is only equal", i.e., the case in question should be punished by the penalty - the law of counter-repetition.

(6) Western Zhou prison called "Huan Tu", also known as "prison".

Three, the Spring and Autumn and Warring States legal system

1, Zheng ZiYan "casting the book of punishment in the tripod, for the country's standing law", this is the first time in the history of China's officially published written law; DengJi made "bamboo punishment" for private writings, and later recognized by the state, became the official law. It became the official law. It was the first time in the history of China that a written law was officially published; Deng Qi's "Bamboo Penalty" was a private work, which was later recognized by the state and became a formal law.

2. Legislation:

When Wei Wenhou, Li Yulong formulated the six articles of the Law Scriptures. The law is the earliest of China's feudal society, a rough system of law, is the first relatively systematic codified law. Divided into "theft", "thief", "net", "catch", "miscellaneous law", "with law" (general chapter).

3, Qin's legal system - Shang Yang followed the "law of the scriptures" and changed the law to law. The first appearance of the "law"

Four, the Qin legal system

(a) the form of the law

1, the law: the court on a specialized category of laws formally promulgated. Since Shang Yang changed the law into law, the law has become the main form of law in the Qin Dynasty.

2, the law answer: the court and local officials in charge of the law of the authoritative interpretation of the law, and the legal provisions of the same universally binding. The format used is the question and answer form.

3, the court act: that is, the case into the case. （

(2) Penalties

The Qin Dynasty was divided into eight categories: flogging, imprisonment, banishment, corporal punishment, death, humiliation, economic punishment, and guilt by association. The first five categories are equivalent to the modern main punishment, and the last three categories are equivalent to the modern additional punishment.

1. Shingdan pounding - imprisonment.

2, with five punishments: that is, "when razing the three tribes, all the first tattoo, wakes, chopping left and right toes, flogging to kill, lording over their heads, mincing their bones in the city. Those who slandered and cursed were first cut off their tongues, so they were said to have five punishments. This is the development of the punishment of tearing off limbs, and the germ of the punishment of death by hanging. It became the legal death penalty when Emperor Shenzong of Song Dynasty.

3, humiliating punishment: scalping, endurance, finish as an additional sentence of imprisonment. Scalping refers to the shaving of the prisoner's hair and beard. Nai/wan is the second name of the sentence, and only the beard and sideburns are removed.

4, the economic penalty -- the Qin Dynasty economic punishment is mainly "fine"

calculus: the Qin Dynasty with economic sanctions to punish the general dereliction of duty of the officials and the general violation of the law of the people of the independent types of punishment. Including three kinds of: A

calculus armor, calculus shield: the nature of the pure fine. B cuneo garrison: sent to the border for the soldiers. C cuneo corvée: penalized to serve in hard labor.

5, criminalization and sentencing principles:

(1) the age of criminal responsibility. In the Qin Dynasty, height was used as the standard;

(2) Confirmation of the subjective state of consciousness, distinguishing between intentionality and negligence;

(3) Reduced penalties for self-surrender, eliminating the consequences of the crime to reduce or waive the penalties; self-surrender is also known as the self-expression of the

(4) False accusation of counter-representation.

6. Institutional Setting

(1) Official positions: the central government - three dukes and nine ministers. The three dukes are the prime minister, the lieutenant, and the imperial historian; the nine ministers are Fengchang, Langzhongling, Weiwei, Taisu, Tingwei, Diankai, Zongzheng, the internal history of corn, and Shaofu. The highest judicial body in the central government was the court officer.

Local - county system.

(2) Judicial organs: Central - Prime Minister, Royal Historian, Tingwei. Local - county and prefecture levels . Judicial organs and administrative organs were combined into one, and the administrative organs also had judicial functions.

7. Litigation system

(1) Self-represented cases: Office - criminal; non-office - civil. All non-office suits were not accepted by the government

(2) Record of Trial: The record of trial by the Qin judiciary and the report of the case compiled on the basis of this record. It is called "zuoshu" in the "sealing diagnostic style". Zuoshu - Qin judicial records

V. The Han legal system

The three ancient dynasties - theocratic legal thinking; Spring and Autumn and Warring States, Qin - legalistic thinking; Han -Confucianism .

(A) the guiding ideology of the legal system: the early Han dynasty practiced Taoism "do nothing to rule", after Emperor Wu of Han dynasty to Confucianism as the main idea, and supplemented by legalism. Its center is "virtue and punishment".

(2) Han legislation - Han law 60 chapters (noun explanation)

1, "nine chapters of the law": is the Qin "law of the scriptures" on the basis of the six added "household law" "Xing law" "stable law" three chapters, nine chapters. + "Pong chapter" 18 + "Yue Gong law" 27 + "Chao law" 6 = Han law 60. Han law 60 articles of the core of the Han law

2, the form of law: law, order, section, than

Decision than: can be used to compare the judgment of the case can be penalized jurisprudence. The Han Dynasty widely used jurisprudence to decide cases. It belongs to the case law

(3) Criminal law principles

1, the age of criminal responsibility

2, relatives can be the first concealment: refers to the blood relatives in the direct line of three generations and between husband and wife, in addition to conspiracy, treason, can be mutual concealment of criminal acts, and reduce or waive the penalty. It is a system of tolerance and concealment, applicable to concealment of superiority by inferiority, reflecting the ethical nature. Reflecting Confucian legal thinking, with the characteristics of the law and ethics (there may be cases)

3, the first self-reporting in addition to their crimes - surrender from the crime.

4. Noble officials guilty of first petition - noble bureaucratic privilege.

(4) Penal system/civil legal system

1. Reform of the penal system during the Wenjing period

Only the four types of corporal punishment in the five punishments were left in the palace and beheading of the right toe, while the others were more flogging.

2. Contracts of sale - in the Han Dynasty, a contract of sale was called a "voucher"

Format: date of sale, object, price, names of both parties, witnesses

3. Inheritance Law

(1) Identity Succession: the succession to the throne of the two Han Dynasty is still the system of succession of the first-born, and emphasizes the death of the father and the succession of the son. "The father and the son pass on, the Han's agreement also".

(2) Succession of property - all sons share equally.

(3) The Han Dynasty has a will inheritance. Written wills were called "last orders" or "first order books". The first five years of Emperor Pingdi's reign is a complete physical record of wills in the Han Dynasty. The Han Dynasty also saw the emergence of the adoption system.

(5) Judicial organs, litigation and trial system

1. The central government: the Court of Justice - the highest judicial organ.

2. The execution of the death penalty in the Han Dynasty, the implementation of the "autumn and winter execution" system, can be traced back to Emperor Zhang of the Eastern Han Dynasty. In addition to treason and other "never wait for the time", the general death penalty shall be executed in the fall after the frost, before the winter solstice.

3, Spring and Autumn Prison: refers to the trial of cases, such as the law does not expressly provide, the Confucian doctrine as the basis for conviction and punishment. Initiated by Dong Zhongshu, "Spring and Autumn Annals? The Essence of the Spring and Autumn Annals. Purpose: According to the facts of the case, the motives of the perpetrator must be investigated - the heart of the crime. This is a judicial principle of the Han Dynasty, which is a positive addition to the development of judicial principles and trials at that time. Examination of the subjective motives of people, in favor of emphasizing the subjective and objective combination.

4. Hearings and Judgments: Photo Reading and Photo Begging. After the retrial, the verdict is delivered and the sentence is read to the defendant, which is called "reading"; if the defendant claims that he or she is wronged, he or she or his or her relatives are allowed to request a retrial, which is called "begging".

Sixth, the Three Kingdoms and Jin Dynasty legal system

(A) the Three Kingdoms Cao Wei "new law" / "Wei law"

1, style - the old Han reform

(1) increase the number of articles, **** eighteen articles;

(2) the body of the adjustment. The new law will be the original Han "nine chapters of the law," the sixth "with the law" class is close to the modern general principles of criminal law), renamed "criminal name", listed in the first law, highlighting the role of its general principles.

2, content: the establishment of the maintenance of the privileges of the aristocratic officials of the system of "eight proposals"; Wei "new law" also provides for the system of the official when the system, but also the implementation of the system and the appointment of officials in the performance appraisal system of the nine grades, which is the germ of the later implementation of the system of "nine grades in the system".

The "Eight Propositions" is the law of bureaucratic privilege, the judicial privilege of the ancient Chinese aristocrats and bureaucrats, which was first mentioned in the "New Law".

The "Eight Discussions" refers to the eight types of powerful and noble people who were given special treatment in the trial after they committed a crime. "

The Eight Discussions:

The Eight Discussions refer to the eight types of powerful people who were given special consideration in the trial of crimes committed by them. There are the relatives, the deceased, the virtuous, the capable, the meritorious, the noble, the industrious, and the guests.

(2) Western Jin Dynasty "Jin Laws" / "Taishi Laws" / Zhang Du Law (Zhang Fei, Du Pre)

1, style. By Zhang Fei, Du Pre note into the law in parallel, has the force of law.

(1) strict distinction between the boundaries of the law;

(2) reasonable style. Wei law "criminal name" for the "criminal name" and "law" two, and add a few articles, **** 20 articles.

2, the content of the suit to formulate the crime

In accordance with the suit to formulate the crime is the first "Jin law", also known as the five service system or quasi-five service to cure the crime. It means that crimes committed by relatives should be convicted and sentenced according to the five degrees of kinship as stipulated in the five degrees of mourning clothes. It includes the crimes committed by relatives, theft by relatives, and adultery by relatives. It belongs to the category of ethical law.

(3) The Laws of the Northern Qi Dynasty - the highest level

1, style. Further reforms were made to the structure of the Laws, and the number of articles was reduced to twelve, and the Penal Names and Laws were combined into a single article called Names and Regulations, which was placed at the beginning of the Laws to enhance the scientific nature of the structure of the Laws.

2, content: ten felonies. In order to strengthen the suppression of endangering the feudal rule and the violation of ethical norms, the "ten felonies" formally into the law, began in the Northern Qi Dynasty. In fact, it is the "ten evils" in the later code, that is to say, the most serious ten kinds of crimes that directly jeopardize the fundamental interests of the state are placed in the head of the law, rebelliousness, great rebellion, treason, descent, wickedness, immorality, irreverence, unfiliality, injustice, and internal strife, and the offenders of these ten articles are not subject to the limit of the eight discussion of the ransom. The "Ten Articles of Serious Crimes" set out in the Laws of the Northern and Southern Dynasties was the highest level of legislation, and in a broader sense, it encompassed all aspects of the feudal patriarchal system.

(4) Legal Interpretation

Qin's "Legal Answers" - Han's "Chapter and Verse of the Han Laws" - Jin's "Taishi Laws" - "Tang Laws"

< p>(E) litigation system

1, direct appeal: that is, not according to the litigation level, directly to the emperor or ministers, is a special appeal procedure in the litigation. As a system formed in the Western Jin Dynasty.

2, the death penalty review system was formed in the Northern Wei Dynasty, that is, the death penalty decision to the central government. On the one hand, it is prudent, on the other hand, it is also a control.

Seven, Sui and Tang legal system

(a) Sui Dynasty "Kaihuang Law"

1, style: the structure of the twelve Northern Qi, the name of the first example of the law, followed by the guards forbidding, system of duty, household marriage, stables and libraries, trespassing, thieves and robbers, fights and lawsuits, frauds and falsehoods, miscellaneous laws, arrests and deaths, and breaks the prison chapters. Unlike the Northern Qi, change the Northern Qi "ban on the law" for "Wei ban"; "Household" changed to "Household marriage"; "capture" divided into "capture" and "break prison" to the Northern Qi "fight law", "the law of" "damage law" "the title of the article deleted, the content of the law for the absorption of other laws. Since the Warring States, Qin and Han, through the Three Kingdoms, two Jin and North and South Dynasties, to the Sui revision of the "Kaihuang law", the twelve feudal criminal law system finalized.

2, penalties. (Content characteristics)

(1) formally determined to flogging, caning, imprisonment, exile instead of the previous barbaric system of corporal punishment, became the feudal system of five penalties. The emergence of the five punishments in the Sui Dynasty marked the maturity of the feudal penal system.

(2) Formalizing the crime of "ten evils" in the form of law.

(3) Formation of the legal prerogative of "discussing, requesting, reducing, redeeming, and pawning".

3, the significance of: "open" is the beginning of the Sui ruling group summarized the past legislative experience and the formulation of a representative of the feudal legal code, inherited from the Northern Qi law "decree clear trial, section briefly" tradition, and adjusted, revised. It played an important role in the history of Chinese feudal law. The law was gradually codified.

(2) Tang Dynasty legal system

Ⅰ "Tang Law Review" *** four times revised. The foundation of the Tang Law was laid down in the text of the "Zhenguan Law".

1, "Zhen Guan Law" major changes. ***Twelve articles, 500 articles.

(1) the creation of the penalty of exile as a reduction of death;

(2) the reform of the law of "brothers living apart, even the death";

(3) in the form of a major law to clarify the legal principles that should be followed in comparison and analogy.

2, "yonghui luzhu" that is, "tang luzhu shuzhi", is China's history so far preserved the most complete, the most social impact of the feudal code.

3, "Kaiyuan Law"

4, "six canons of the Tang Dynasty" (revised by Emperor Xuanzong)

(1)***Thirty volumes of the feudal administrative bureaucracy in accordance with the arrangement, set to the "six officials of the Zhou Dynasty" for the revision of the style, provides for the administrative legislation, "to the official unified canon" guiding principle. "The guiding principle of administrative legislation.

(2) The separation of the criminal law and the ritual system was realized, and the feudal administrative law finally became an independent legal department.

(3) It is one of the oldest and the first systematic administrative code in existence in China, which was passed down to the later generations as the "Six Canons of the Great Tang". Since then, the feudal criminal law and administrative code both separate from each other and each other for the use of the two major code system.

II legal form

1, Tang's criminal book there are four, said: law, order, frame, style

Law to criminalize the right punishment, order to set up a model for the establishment of the system, the frame to prohibit violation of the evil, the style of tracking the program. Tang Dynasty style called "Yong style", is with administrative regulations of the nature of the legal norms often applied.

Late Tang Dynasty: canon, edicts, regulations.

2, Xuanzong of the Tang Dynasty compiled "Dazhong Criminal Laws Unification Class", the law as a unity, and similar laws and regulations attached to it.

III Administrative Organization

Three provinces and six ministries system - Shangshu Province - mandarins, households, rituals, military, penal, labor

- Zhongshu Province

- Menxia Province

-Menxia Province

The Imperial Palace of Justice - the supervisory body

ⅣBody.

Tang Laws Review **** twelve, will be placed in the first of the law, the name of the Ordinance, play a general role, including the system of penalties and penalties and other content.

1, the feudal system of five punishments: flogging, caning, imprisonment, exile, death.

Flogging - punishment for minor offenses; caning - physical punishment; imprisonment - a combination of free punishment and slavery; exile - the punishment of reducing death; death - the punishment of reducing death; and so on. - the punishment of commutation of death; death - hanging, beheading.

2, ten evil

V content

1, ten evil

Tang law "ten evil" is a threat to the feudal imperial power and the feudal state of the ten felonies in general, that is, since the Han system, "nine chapters of the law" there are certain crimes; the Northern Qi, the Northern Zhou is summarized in the "ten serious crimes"; the Northern Qi, the Northern Zhou. Ten felonies"; Sui system "Kaihuang law", complete the "ten evils", thus laying the foundation of the Tang law "ten evils", and used until the end of the Qing Dynasty. Its contents are: plotting against, plotting against, plotting against, rebellion, wickedness, immorality, great disrespect, unfiliality, disharmony, injustice, and civil strife. Among them, the descending merged in the rebellion; increased disharmony; in the reverse, the great rebellion increased seek. Specific content can be roughly divided into three categories:

A, threatening to undermine the imperial power, endangering the feudal state political crimes: plotting against the emperor, plotting against the emperor, plotting rebellion, great disrespect, etc.;

B, threatening the feudal order: not the way;

C, undermining the relationship between the feudal ethics: evil, filial piety, unholy, unholy, unrighteousness, civil strife and so on.

2, the law of privilege

(1) the eight proposals: the Tang Dynasty inherited the system of "eight proposals" since the Cao Wei Dynasty, eight types of privileged people to reduce or waive the punishment of the crime provisions. Talk about relatives, relatives of the emperor; talk about the old, the emperor's old; virtuous, character to achieve the highest level of feudal morality; can, people with great talent; work, meritorious people; noble, feudal nobility bureaucrats; diligent, diligent in the service of the feudal state; Bin, the descendants of the former royal family is honored as a guest of the state. According to the Tang law, the above eight categories of people who commit crimes, such as capital punishment, officials must first report to the emperor, and "discuss their crimes", to the emperor's ruling, according to the general rule, the general capital punishment can be reduced to a stream of crimes, stream of crimes below the natural reduction of the sentence of one grade, but the crime of the "ten evils" are not included in this scope. However, those who have committed the "ten evils" are not included in this scope.

(2) Requesting, reducing, redeeming, removing from office.

VI Principles of Criminal Law

1, recidivism aggravation principle;

2, the old, young, invalid, the principle of reducing or exempting from punishment for the crime of illness; (attention to the case study)

3, the principle of the self-surrender. Tang law improved the provisions of the surrender. First of all, the strict distinction between the boundaries of self-rehabilitation. The Tang Dynasty to the crime has not been reported and can go to the government to confess the crime, called the surrender. Secondly, the Tang Law stipulated that not all crimes could enjoy the treatment of surrender. Thirdly, the Tang law stipulates that although the person who surrenders can be exempted from the crime, "the stolen goods are still levied as the law", that is to say, the stolen goods must be repaid according to the provisions of the law, in order to prevent the person who surrenders from obtaining money illegally. Fourth, the surrender of incomplete behavior made strict provisions.

Distinguishing between surrender and rehabilitation.

Self-surrender: If a person who has committed a crime is not reported to the government and confesses to the crime, he/she is exempted from criminal responsibility.

Rehabilitation: If the crime is revealed, or if the government finds out that the person has fled, and then he/she turns himself/herself in to the police, the criminal punishment will be reduced.

4. The principle of multiple punishment - the principle of absorption.

5, the principle of analogy: the judgment of the crime and no positive article, it should be out of the crime, it is a heavy to light; it should be incriminated, it is a light to light.

6, the principle of criminalization of outsiders: the combination of personalism and territorialism. (Principle of redemption)

ⅦTang Dynasty Divorce System Tang Divorce Forms (System): Yijie, Wojie

Yijie: refers to the act of killing or wounding by a husband or wife of the other party's immediate or collateral ascendants. Divorce is legally mandatory.

Harmonization: the husband and wife have no feelings for each other and are legally divorced.

VIII Judicial System

1. Tang Dynasty Central Judiciary: Three Legal Departments: Da Lisi, Ministry of Justice, and the Imperial Palace of Justice

Three Judicial Departments: Three Judicial Departments: Three Judicial Departments were responsible for the judicial system of the Tang Dynasty; in the event of a particularly important case at the central governmental level or at the local level, it would be heard by a temporary supreme court composed of the Secretary of the Da Lisi, the Minister of Justice of the Ministry of Justice, and the Chief Justice of the Imperial Palace of Justice, all of whom would be present in the capital city of the Tang Dynasty. In later times, this system gradually changed to the "three legal departments" joint trial system. The Ming and Qing dynasties called "the three departments of the trial".

2. In the Tang Dynasty, the responsibility of judges was strictly defined.

(1) out, into the crime. Anyone who intentionally enters or exits a crime, "all out, all in", "to the full crime"; intentionally from the light into the heavy, or from the heavy into the light, to the increase or decrease in the penalty for the crime; due to negligence and enters or exits a crime, "the loss of entry, each reduced by three grades, and the loss of exit, each reduced by three grades, and the loss of entry, each reduced by three grades. If the offender has committed a crime by negligence, "the penalty shall be reduced by three grades for those who fail to enter, and by five grades for those who fail to leave.

(2) Replacement of video. For the first time, the Six Canons of the Tang Dynasty affirmed the system of disqualification of judges in the form of a code of law.

3, the death penalty review process. Changed the death penalty in the capital of three reviews to five reviews.

Eight, the Song dynasty legal system

"Song Penal System" is a comprehensive code, the first stereotyped issue of the code. It is the basic criminal code of the Song Dynasty systematic development.

Nine, the Ming Dynasty legal system

(A) style

1, "Daming Law"

(1) Title Article, **** seven. The "Name Law" as a general outline of the following six laws, mandarins, households, rites, military, criminal, and labor. Hongwu thirty years of law publication, marking the finalization of the basic code of the Ming dynasty. The creation of the "Daming Law" not only marked the legislative achievements of the Ming Dynasty, but also influenced the pattern of legislation in the Qing Dynasty.

(2) The Ming Daiguan was a special criminal law compiled by Zhu Yuanzhang himself, and it was a cruel law to punish the officials.

Ten, the Qing legal system - the end of the Qing Dynasty, semi-colonial and semi-feudal

(a) the main activities of the preparatory constitutional:

1, "qin ding constitutional outline" (modeled on Japan's real monarchical monarchical constitutional system)

1908, Guangxu thirty-four, the promulgation of the "qin," which became the first modern constitutional significance in the history of China's legal system. It was the first legal document with modern constitutional significance in China's legal history. It was the first constitutional document in China, which put a legal cloak on the monarchical authoritarian system in the form of a capitalist constitution, making the late Qing dynasty constitution the beginning of the disintegration of the Chinese legal system. Constitutionalization of monarchical power. Adoption of the real monarch **** and constitutional monarchy.

2. Nineteen Creeds 1911

(1) The cabinet system of responsibility of the virtual monarch **** and;

(2) Formal limitation of the power of the Emperor, expanding the power of the Diet;

(3) Provisional constitution, with the nature of the constitution.

3, the establishment of the "Consultative Council" and the "Council of Senior Ministers"

(2) the revision of the law:

1, "the existing criminal law of the Qing Dynasty"

(1) nature: a transitional code.

(2) the content of the system:

① change the name of the law, "Criminal Law";

② change the original system, more from the name of the case to the river defense 30 doors, the old and the new system of compromise caused;

3 reform penalties, the abolition of torture, the feudal system of five penalties instead of five penalties of fines, imprisonment, exile, deportation, and death;

4 abolition of outdated laws and regulations, adding new crimes.

2. The New Criminal Laws of the Qing Dynasty was compiled by Shen Jiaben and Okada Shotaro, but it was not implemented.

(1) structure:

① imitation of the bourgeois criminal law style;

A will be deleted from the non-criminalization of the content of the conviction, and became the first modernized special criminal law code in Chinese history;

B to determine the new criminal law system, modern criminal law and sub-principles of the general provisions of the system;

② bourgeois state penal system, modern five penalties. The main penalty for the death penalty, life imprisonment, imprisonment, detention, fines; the body will be excluded from the penal system.

(2) content

① absorption of the bourgeois criminal law system - crime and punishment;

② the feudal criminal law system a lot of deletion, hierarchical privilege law, etc., to determine the status of equality;

③ this is the first Chinese history of the bourgeois criminal law principles, the body of the formulation of the It influenced the semi-colonial and semi-feudal criminal legislation of China.

(3) Terminology: Rites and Laws Dispute: In the late Qing Dynasty, in the process of changing the law and repairing the law, Zhang Zhidong and Laonai Xuan as representatives of the "Rites and Teachings Sect" and the Minister of Law Shen Jiaben as representatives of the repair and the theoretical disputes that arose.

(4) the revision of the draft civil law:

"The draft civil law of the Qing dynasty" Shen Jiaben, Matsuoka Yoshimasa

(1) the first three parts of the civil law to the "model of the Great Powers", presided over by the revision of the Law Museum, foreigners were hired to revise, drawing on the contents of the Western civil law of the modern era;

(2) the last two parts of the civil law to the "solidification of the country's civil law", and to the "model of the Great Powers". (2) the latter two to "solidify the national essence" for the clan, by the Qing court rituals Museum presided over the drafting, focusing on the absorption of traditional Chinese society over the generations of the rites of folklore, there is a strong feudal color.

The draft of the Qing Civil Code is not a mature draft law, but it is the first draft of the civil code in Chinese history, and it was the basis for the second revision of the Beijing government's draft of the civil code.

(V) Judicial System

1. Consular Jurisdiction: All countries enjoying consular jurisdiction in China, their nationals in China are not subject to the jurisdiction of Chinese law, regardless of any violation of Chinese law or become a party to a civil/criminal lawsuit, the Chinese judicial organs do not have the right to adjudicate, but only by the country's consuls and other personnel or the judicial organs located in China in accordance with the laws of the country to adjudicate. .

2. The court system: In 1864, the Qing Dynasty and the consuls of the United Kingdom, the United States and France in Shanghai agreed to set up a public house of justice in the Concession.

3. Reform of the judiciary: The pursuit of judicial independence began

Central government

(1) The Ministry of Justice was transformed into the Ministry of Law, which was responsible for the administration of justice.

(2) The Grand Council was changed to the Da Lisi Yuan as the highest judiciary in the country; the Three Judicial Departments system was formally abolished, establishing the modern system of centralized judiciary.

(3) Establishment of the General Prosecutor's Office, the General Prosecutor's Office was reorganized in the Dairen. As the highest prosecuting authority, it exercised prosecuting power independently. The Prosecutor General's Office - the local prosecutor's office is located within the local judiciary at the same level.

Local

(1) Provinces set up Higher Trial Chambers; prefectures set up Local Trial Chambers; and prefectures and counties set up Primary Trial Chambers. The four-tier, three-trial system was extended to the whole country.

(2) Prosecutor's offices were established within the local trial halls at all levels.

The Trial Establishment Law of the Dali Yuan introduced the bourgeois principle of "judicial independence" and established a four-tier, three-trial system, a joint office of the trial and prosecution and a collegial system of trial, which was the first single-issue court organization statute in China to emulate the bourgeois countries.

4. Reform of the litigation system

(1) to determine the principle of judicial independence;

(2) to differentiate between criminal and civil litigation;

(3) to separate the power of the trial and the power of the procurator;

(4) to recognize the defense system. Since then, China has had a system of lawyers.

Xi. Republic of China's legal system

(1) Five-power constitution. In 1906, Sun Yat-sen first put forward the "separation of powers" **** and system: in addition to the legislative, judicial, and executive powers, there are also the right to vote, the right to picket the five powers **** and politics.

(2) "Provisional Covenant of the Republic of China"

1. Content:

(1) to determine the content and nature of the sovereignty of the Republic of China;

(2) to determine that the Republic of China is a sovereign and independent multi-ethnic state;

(3) to determine that the Republic of China's state institutions to adopt the "separation of powers " principle;

(4) to determine the democratic rights and duties of the people;

(5) to confirm the principle of protection of private property;

(6) to determine the maximum efficiency of the Provisional Covenant and the procedure for amending it .

Examples:

1. Derivation of Penalties (P49)

Main Penalties: The Five Penalties of Slavery--Murder, Wakes, Amputation, Gong, and Dabai;

The Five Penalties of Feudalism--Flogging, Caning, Imprisonment, Straying, and Death;

The Present Penal Laws of the late Qing Dynasty - fine, imprisonment, exile, deportation, and death;

The New Penal Laws - fine, detention, fixed term, indefinite term, and death.

Additional punishments: Zhou - the system of huan tu, jia shi, ransom, exile;

Qin - flogging, imprisonment, exile, meat, death, humiliation, economy, and association;

Han - the abolition of meat punishment in favor of flogging;

Han - the abolition of meat punishment in favor of flogging, imprisonment, exile, death;

Humanity. - abolished corporal punishment and replaced it with flogging; the punishment of beheading the right toe was changed to abandoning the city, changing the lightness of the punishment to the heaviness of the punishment; later the four corporal punishments were changed to two kinds of punishments, namely, the palace punishment and the punishment of beheading the right toe.

Ming Dynasty - five punishments, military punishment, yoke punishment, the court cane system.

2. Noble bureaucratic privilege law - the same crime, different punishments

(1) Zhou: criminal not on the doctor. When a noble bureaucrat committed an ordinary crime, whether or not to be punished and what kind of punishment to give, not in strict accordance with the law, but by the upper nobles or the king of Zhou according to the different circumstances to make a judgment.

(2) Han: noble officials guilty of first request. In the Western Han Dynasty, dukes and their heirs, as well as officials of more than 300 stones, enjoyed the privilege of being first to petition for a conviction, and their sentences were generally reduced or waived by petitioning for a conviction.

(3) Cao Wei's "New Law" first introduced the "eight proposals" system. The eight proposals into the law.

(4) The Chen Law formally used the term "official pawn" to offset the crime with the official.

(5) The Tang Dynasty: eight proposals, please, reduction, redemption, official pawns, exemption. This legalization of the privileges of the aristocratic officials was used to maintain the feudal bureaucracy and consolidate the basis of autocratic rule, and was used until the end of the Qing Dynasty.

(6) At the end of the Qing Dynasty, the "New Criminal Laws of the Qing Dynasty" deleted the law of hierarchical privileges, and determined the legal equality

3. Derivation of the chapter style

(1) In the Warring States period, the "Laws of the State" six chapters, and set up "the law of the State" as a general chapter;

(2) The Qin Dynasty changed the law into the law, and made the six laws;

(3) The Han Dynasty law 60 chapters. The Nine Chapters of the Law added the Households, the Stables and the Stables to the six chapters of the Qin Law.

(4) Three Kingdoms and two Jin Dynasty

Wei "new law" increased to eighteen, changed "with the law" for "criminal name", listed in the first law, highlighting its role as a general rule.

The Jin Law was increased to 20 articles. It was divided into two parts: "Criminal Names" and "Laws".

The Northern Qi Laws were merged into twelve articles. The "Criminal Names" and "Laws" were merged into the "Names and Regulations", which were placed at the beginning of the law to enhance the scientific nature of the structure of the code.

(5) The structure of the twelve articles of the Kaihuang Laws of the Sui Dynasty. Changed the ban on guards for the ban on guards; Household law for the household marriage; catch breaks for the capture of the dead and prison breaks. The structure of the twelve feudal criminal laws was finally established and was used until the Ming Dynasty.

(6) Ming "Daming Law" **** seven. The name of the Ordinance as a general outline of the following six laws, mandarins, households, rites, military, criminal, labor. Marked the finalization of the basic code of the Ming Dynasty, affecting the legislative pattern of the Qing Dynasty.

(7) Qing

"Qing current criminal law" to change the name of the law, "Criminal Law", since the name of the case is divided into 30 (transitional code);

"Qing new criminal law"

4, Confucianization of law.

(1) Xia - there is the crime of unfiliality;

(2) Zhou - Rites - respect for relatives; old and young to reduce the penalty;

Crimes: unfiliality and unfriendliness, commit the king's order to release the regicide of his king, the killing of the Yue people in the loan. Killing the Vietnamese in the Loan .

(3) Han - Confucianism is the main idea, and supplemented by legalism. The center is the moral principle and the punishment is supplemented.

Crime: Kissing and hiding - ethical.

(4) North and South Dynasties - ten felonies, started in Northern Qi Dynasty and inherited by later generations.

Crimes: service enactment of the crime of "Jin Law" first; stay and raise the system. The specific embodiment of the ancient Chinese law family, institutionalized.

(5) Sui - "ten evil crimes"

(6) Tang - ten heavy punishment. The old and young invalid disease crime to reduce or waive the penalty;

(7) the end of the Qing Dynasty to delete the ten evils based on the family world and the patriarchal system of ten evils, the retention of relatives and other feudal law content.