Essay on the Characteristics of Ancient Chinese Law and Its Defects

China is a typical country of written law.

As early as in the Qin Dynasty,

Han Fei, the master of legalistic thought, said, "Law,

Constitution and decree are written in the government,"

"Law

is the one that is compiled and set up in the government, and distributed to the people," making it clear that the law is made by the state, and that it is not the law that is written by the state, and that the law is the law that is written by the state. "

"Law

is a documented and publicized form of law made by the state. Today, as the current sources of Chinese law are the Constitution, laws, administrative regulations, local

legislation, autonomous regulations, administrative regulations, laws of special administrative regions, and international treaties. Although there are now cases published regularly in the Bulletin of the Supreme

People's Court, as well as in publications such as China's Trial Case Essentials,

People's Court Case Selection,

and Criminal Trial Reference,

these cases are only instructive, not prescriptive, and have no legal effect, as China's legislators have not recognized the jurisprudence system.

The above cases are only instructive, not prescriptive and not legally binding.

2.

Throughout China's history, jurisprudence has also been a source of law.

As early as in the Yin and Shang dynasties, there is a "blame than in the punishment" principle, that is, there is a crime, compared to the same kind of crime to

punishment of the precedent to deal with. In the Qin Dynasty, there was the "court act", that is, the court of law into the case.

2.1

The jurisprudence of the judiciary is the established precedents.

In the unearthed bamboo slips from the Sleeping Tiger Earth Qin Tomb in Yunmeng, Hubei Province, there are many references to "acting in the court," which indicates that "acting in the court" has become a precedent that can be invoked in addition to the original text in judicial practice.

This is the first time in the Han Dynasty that a precedent has been invoked.

To the Han Dynasty, the judgment

Law of precedent has been further developed,

"Han Law" in the "decision than", "the law of the section article, all to the matter of the type of similar

comparison" of the provisions, in particular, the Dongzhongshu citation of the activities of the decision of the prison, but also to give the Han Dynasty jurisprudence of the law of precedent, the law of precedent.

The case law of the Han Dynasty was given a new contemporary character, incorporating the principles of judicial activity into the Confucian legal worldview.

The Tang Law - the name of the case

also stipulates that "all the judgment of the crime without the right articles, the person who should be out of the crime, the weight of the light; the person who entered the crime, the light of the light to

Meaning the heavy". After that, the Song Dynasty, "the law is not contained, and then use the example", the example that is the case of the established practice, and the Song Huizong

Zong had to break the case of the codification of the example. The Ming Dynasty was the implementation of the law and regulations, "in addition to the Daming Law and Letters Patent as the basis, still

Really used since the Tang and Song, the tradition of 'case by case'". In the Qing Dynasty, due to the flexibility of the form of regulations, the Qianlong ten

one year to determine: "regulations five years a small revision, ten years a major revision", and then became customized. Later, it is stipulated that "there

definitive regulations, the use of regulations without law". The Qing Dynasty did not change the law to amend the law, the introduction of the Western legal and judicial system, the

Daliyuan created a large number of jurisprudence,

Court Preparation Law provides that "all the judgments made by the Daliyuan have

legal effect, the lower courts shall not be contested". From this, we can see that in China's history, case law has a very high affinity with the written

law. Within the framework of the written law, case law compensates for the loopholes of the written law and alleviates the conflict between the

written law and the social reality. If the way of adjustment of the enacted law is from general to individual, then

the way of adjustment of the case law is from individual to general, and the organic combination of these two ways of adjustment makes the unity of legal fact

qualification and applicability, which is both the characteristic and advantage of the ancient Chinese legal system.

2.2

The law was thus regarded as an unfinished work to be supplemented by the interpreter, and as a machine that had to be operated by

persons rather than a perpetual motion machine that operated on its own, and the outreach of the law thus became open-ended

From a practical point of view, due to the "limitations of the statute law, which are specifically manifested in its purposelessness, its unsuitability, and the fact that it is not a law of its own, the law of the world is not a law of its own. Specifically manifested in the non-purposeful, not extended

sex, ambiguity, lagging", resulting in the promulgation of a statutory law soon after the relevant departments and

to address the gaps and loopholes in the law to issue legal interpretations. In particular, the "two high courts" have issued a large number of judicial interpretations in recent years in order to solve the problems encountered in the application of the law in the judicial practice sector, but these interpretations are still in the form of

from the general to the general, from the abstract to the abstract, without targeting any specific person or thing, and their nature is still abstract

The two high courts have issued a large number of judicial interpretations in recent years in order to solve the problems encountered in the application of the law in the judicial practice sector. p>Image interpretation, is a static interpretation of the static law, which itself is still ambiguous, can only be limited to make up for the shortcomings of the written

law, the results of its interpretation inevitably still have a certain abstraction, in the application of the law still need to be

officials to further interpretation to be grasped and used. Moreover, the "two high" abstract judicial interpretation often break

existing provisions of the law, and some even conflict with it, with quasi-legislative suspicion, contrary to China's constitutional

system. It can be seen that at present, only by strengthening the interpretation of the law, is not able to solve the inherent defects of the written law.

3.

Based on the history and reality of Chinese society and the development trend of the world's legal system,

constructing a jurisprudence system in line with China's national conditions.

3.1

Effectiveness of jurisprudence

That is, the legislation should firstly solve the problem in two aspects, one of which is the hierarchy of effectiveness of jurisprudence in the legal sources.

China's current judicial trial is accustomed to the general rules of law to the specific case of thinking, and jurisprudence in my

The main function of the country will be to explain the law, fill the loopholes in the enactment of the law, the coordination of legal norms of the conflict between the law

etc. to make up for the shortcomings of the enactment of the law. Therefore, the level of effectiveness of jurisprudence is now located in the judicial interpretation of this level

The level is more appropriate, that is, the effectiveness of jurisprudence is lower than the enactment of the law, shall not be contrary to the Constitution and the laws and regulations,

Judges in the hearing of a specific case, should try to rely on the enactment of the legal norms of the existing decision, and only in the absence of

the enactment of the law based on the case, it can be Only in the absence of

legal basis, can follow precedents or create jurisprudence to adjudicate. Secondly, the relationship between the effectiveness of jurisprudence and each other

. That is, we are familiar with the principle of "follow the precedent", and this is the system of jurisprudence to

exist in the value of the meaning of, "when the court in a case to do a judgment, then the court and

lower courts in dealing with the case similar to the case must be based on the judgment of that case. that case must be decided in accordance with the judgment in that case. So,

once a court has given a judgment in a matter, its lower courts must follow it." However, the precedent of a higher court may not be "followed" if the precedent is "for want of notice" or "invalid rule".

3.2

Publishing of precedents

That is, the legislation should address the question of who should issue the precedents. Some scholars believe that the local courts do not have the right to issue jurisprudence, advocating

In order to maintain the authority of the case and the unity of the law, the issuance of cases can only be implemented in a single, can not be implemented in multiple

Yuan, that is, can only be issued by the highest national judiciary, just as judicial interpretation can only be issued by the highest national judiciary

Uniformly made the same". The author does not agree with this view, on the contrary, the law should authorize the intermediate courts have the right to issue

jurisprudence, the reason is: first, jurisprudence and legal interpretation of the biggest difference is that the legal interpretation of the abstract interpretation,

and jurisprudence is through the handling of specific cases, the realization of legal norms of the omission of the filler and concretization, is a specific interpretation,

which inevitably be affected by the time, space and human factors, the impact of the case. The second is that

China is a large country with extremely unbalanced political and economic development, and the natural, geographic, and social conditions of each place are

worlds apart, which calls for the establishment of a multi-level jurisprudence system to adapt to this national situation; third, the intermediate court

jurisdiction is an administrative court with relatively independent natural, social, and human, geographic areas, and it is not a case that can be dealt with through the handling of specific cases, but a specific interpretation. social, humanistic and geographic administrative region, which is the closest and most compatible one in terms of political, economic and cultural

culture

, and the intermediate court is the court of second instance, with high quality of judges

quality and material equipment conditions, it is appropriate for it to issue jurisprudence to guide the judicial decisions in the region; fourth, if

only the Supreme Court can be the issuance of jurisprudence, then not only will it greatly improve the jurisprudence, but it will also improve the quality of the judges. court, then not only will greatly increase the operating costs of the jurisprudence system

costs, reduce the efficiency of the operation of the jurisprudence system, but also inconsistent with the national situation, can not be good to play the jurisprudence system of the

effective; Fifth, by the intermediate and higher courts to issue jurisprudence, will not undermine the unity of the country's legal system, because jurisprudence

is the application of the law of the specific individual cases, reflecting the inter-regional differences in social and economic development. For example, in the

Inland Qinghai road traffic accident personal injury compensation cases, the compensation standard is certainly lower than the same type of cases in the coastal Guangdong

East.

3.3

Production and Screening of Jurisprudence

That is, the legislation should address how jurisprudence is produced. In the author's view, the jurisprudence system is built on the basis of excellent adjudication documents

.

3.3.1

Constructing a Chinese-style jurisprudence system,

its first task is to,

"accelerate the pace of reform of the adjudication documents,

improve the quality of the adjudication documents

.

The focus of the reform is to strengthen the analysis and authentication of disputed evidence in cross-examination, enhance the rationality of the verdict,

promoting the judges in the production of adjudicatory documents, can make a detailed and complete discussion on the process of legal reasoning, conclusions,

And in the form of the documents to maintain the structure of the document is complete, well-organized, and logically rigorous.

3.3.2

A decision full of legal reasoning is not always honored with the status of "jurisprudence",

which requires a screening process.

The criteria are: in the formal elements, should be typical, that is, a certain degree of representativeness; in the reform and opening up

the emergence of new types of cases, the application of the law is difficult; the case of the legal issues are controversial; the case

of the decision must have been in force and so on. In terms of substantive elements, it should have the content of legal interpretation. Jurisprudence in essence

is "specific legal interpretation", is in combination with the facts of the specific case on the basis of the legal norms to make a reasonable understanding of the

interpretation and application, has a very strong relevance, because of this, the judge can be from the jurisprudence shown in a specific example of the

inspired by the accurate grasp of the spirit of the legal norms. The spirit of legal norms, and then accurately apply the abstract and vague legal principles

to specific cases. And the problems that the jurisprudence needs to be interpreted can originate from the ambiguity of the text of the legal norms, or the text

does not correspond to the legislative intent, or there is a conflict between different legal norms to be applied, or the law lacks the provisions of the specific

problems, and so on.

3.4

Use of Jurisprudence

The same cases being treated in the same way is where the requirements of general justice lie, as Cardoso says: "If

there is a group of cases involving the same points, the parties will expect the same decision. If

these cases are decided alternately on the basis of opposing principles, then this is a great injustice. If in a case of

yesterday the decision was against me as the defendant, then if I were the plaintiff today I would

expect the same decision in that case. If it were different, a feeling of anger and injustice would rise in my breast; that

would be a violation of my substantive and moral rights." Therefore, the legislation should stipulate the method of applying the jurisprudence,

that is, the process of applying the jurisprudence is a process of analogical reasoning, and it is necessary to compare the main points of the case to be dealt with with the points in the jurisprudence

and to find out the rules of law which are essentially connected with them, and this is not a process of mechanically comparing the differences

similarities, and it is not only a discipline of It is not a mechanical process of comparing differences and similarities, it is not only a science of "comparison", but also includes the art of interpretation, the art of extracting the original

rules from individual cases. Often a pending case may require a collection of several points of jurisprudence in order to find out the legal rules

rules and finally make a decision based on the legal values of fairness and justice.

3.5

Cleaning up and abolition of jurisprudence

The legal rules established by jurisprudence are the scientific summary of the practical experience of the judiciary, and once the legislature confirms and fixes them in the form of enactment of the law, the jurisprudence realizes the process of transformation from judiciary to the legislature, and its mission

is completed. Or the higher courts have made a new jurisprudence contrary to the results of the jurisprudence, then it will also lose its binding force

and replaced by a new jurisprudence. Therefore, the legislation should stipulate that the organ that issued the precedent must timely clean up the

previous precedent, and the invalid precedent will be publicly abolished to the society.

The author hopes that, with the deepening of judicial reform, the status quo of a single statutory law as the source of our country can be broken

. The introduction of jurisprudence, a product of human empiricism philosophy, will weave with the statutory law *** with the social tight

"legal network", to promote the development of China's legal system and the construction of the socialist rule of law.