Historical comparison questions

The respective characteristics of China and the West.

1. China values criminal law over civil law, while western countries value civil law. China law came into being in Xia Dynasty, which was called "Yu Punishment" at that time. At first, it was mainly used to deal with foreign resistance, which was the arbitrary will imposed on the loser by the victorious country. Therefore, the punishment is extremely cruel, which is manifested in the "five punishments" of slavery (Mo, Mo, Mo, Gong and Da Bi). Punishment is a tool of repression within the clan, which is manifested as external force in the clan war. Three generations of punishment, the laws of Qin and Han dynasties, and even the laws of Tang Dynasty and Ming and Qing Dynasties are still criminal codes. This shows that ancient Chinese law has something to do with power from the beginning, but has nothing to do with rights. Law is considered as a means to restrain and control people. This narrowness excludes the civil function of law, which does not mean that it cannot adjust civil relations, but that it cannot handle civil relations without being divorced from the state and punishment. Twelve Laws of the Tang Dynasty can be regarded as a model of China's feudal law, which is characterized by the fact that the legal provisions focus on punishment, and civil legal acts and moral acts are also punished as criminal offences. In the west, the laws of ancient Greece and Rome were formed in the process of internal struggle and reform of clans and the result of mutual compromise of various social forces. People in ancient Greece regarded law as a regulator of the whole society, a measure to determine rights and obligations and a means to protect rights. Because law represented and was equal to the whole political system of the country in the early formation of Athens and Rome, the concept of law was completely different from that of China, and its connotation and extension were richer and wider than that of China (focusing on punishment). It not only contains specific rules and norms, but also has the meanings of justice, equality and morality. For example, China's ancient "punishment" is only a part of its content, accounting for a small proportion. Therefore, law has always been characterized by universality and universality in the west. On the other hand, the formation and development of Athens and Roman countries were achieved through repeated legal reforms and the result of social compromise. Law has the lever of social progress in the west, and it is also the expression of history itself.

2. The separation of public law and private law in the West did not distinguish between public law and private law in ancient China. In China's traditional legal culture, public law culture and penalty culture are basically in an absolute position, and law is actually considered to have only the nature of public law. Due to the country's patriarchal ethics, family obligations have also penetrated deeply into the so-called "public law" field. In the ancient society of China, the public law that should have been applied to the political state was used to adjust the legal relationship of the civil society. For example, officials are required to keep their parents' names secret when they are in office. If their parents die while in office, the law stipulates that they will be worried and offenders will be punished. This mixture of family obligations and state obligations reflects the tradition of separation of public and private laws in ancient China. Due to the distinction between public law and private law, China's traditional legal culture is quite different from that of the West. Its typical characteristics are the lack of individual independent personality, the impossibility of individual equality and freedom, and the status of individuals can only exist in families, races and other groups and grades. The requirements of the law for everyone are, first of all, all kinds of absolute obligations to society (family and country), which are mainly manifested in requirements and taboos, and at the same time, they are not given or rarely given rights. In China's traditional legal culture, due to the distinction between public law and private law, the law can't and can't take safeguarding the legitimate interests of social members, maintaining their spiritual peace and stimulating the enthusiasm and initiative of each social member as the starting point, so that China's traditional legal culture can't be based on "rights" and can only develop into a legal culture far from modern rationality. Reasons 1 China's long-term feudal rule, the king's "privilege" and "autocracy" are taken for granted, and the power concept is deeply rooted. Modern socialism emphasizes public ownership collectivism, while western feudal system is relatively short. Modern capitalism emphasizes the inviolability of private rights. In the field of ideology and culture, China's traditional culture, Confucianism, emphasizes the distinction between nobility and inferiority, "monarch and minister, husband, teacher and son", and it is impossible to treat punishment as medicine and ceremony as Shu Ren. In the Song Dynasty, Zhu Zhu's Neo-Confucianism was "preserving righteousness and destroying human desires", and the western bourgeoisie preached freedom, equality and natural human rights.

Third, the degree of belief in the law is different. (1) The meaning of law or people's perceptual knowledge of law. When people in China talk about the law, they often think that punishment is a tool for rulers to suppress the people, so we often "stay away from the law". We believe that the law can safeguard our legitimate rights and interests, but in reality, disputes can be resolved through other channels. We generally don't resort to litigation, which is the so-called "aversion to litigation", but the concept of western methods is completely different, and the connotation and extension are different. It not only contains specific rules and norms, but also has the meanings of justice, equality and morality. People believe that their legitimate rights and interests can be protected by law, so litigation is quite common in real life, and even many lawsuits are not worth litigation in our opinion. (II) Establishment of the Judiciary The basic political system in China is the people's congress system. The judicial organ is in charge of the people's congress, the organ of power. Under its supervision, although judicial independence is emphasized in theory, it is quite common that the judiciary is interfered by the administration in real life, and the respect of judges is far less than that of the West. According to the theory of separation of powers, western legislation, administration and judicature are completely independent. Judges have a high status and are respected.

Protective and punitive nature of law

As mentioned above, ancient western laws are mainly protective, while ancient Chinese laws are mainly punitive, which is inseparable from the historical and cultural differences between China and the West. In ancient China, there was no distinction between civil punishment and civil law. In the west, criminal law and civil law were clearly separated, and prevention and protection in advance were emphasized to safeguard citizens' legitimate rights and interests, which just met the requirements of citizens' laws and society. Therefore, the people respect and worship the law. Citizens are grateful for the just law, because the law has brought happiness and harmony to citizens, which will form the overall compliance of society with the law, so that the practice of the legal system no longer depends on coercion, but on citizens' voluntary behavior. In ancient China, people paid attention to punishment afterwards, and punished citizens' illegal acts, and most of them were corporal punishment, regardless of civil punishment. In addition, laws are made by the emperor, the supreme ruler of the country. With a personal color, the law often changes after the country changes constantly. Therefore, the attitude of ancient citizens in China, even some modern citizens, towards the law is still fear, suspicion, distrust of the government and even distrust of the law. Citizens refused to take the initiative to seek legal help, thinking that they would be punished if they went to court. In this way, the protection of citizens by our legal system is meaningless and will bring great difficulties. In the modern judicial sense, modern people pay more attention to human rights and equality, yearn for protected laws, and hope that laws will be more fair and just. It is the wish of every citizen to protect their legitimate rights and interests from infringement. Only by realizing this can we truly build a harmonious society and a society ruled by law. Suggestions on the construction of modern legal system-to form and develop a society ruled by virtue on the basis of adhering to the rule of law not only means the expansion and infiltration of law to all aspects and levels of social structure, but also means that law is an essential knowledge and skill for people's survival and development and an important means for people to create a new society. Strengthening the legal consciousness and legal concept of all citizens is a basic project to fully implement the basic strategy of governing the country according to law. Pahlman, a famous American legal philosopher and legal historian, pointed out that "the factors to ensure compliance with the rules, such as trust, justice and reliable sense of belonging, are far more important than coercion. Laws are effective only when they are trusted, so there is no need for strong sanctions. People in power according to law don't need to rely on the police everywhere. ? In short, what can really stop crime is the tradition of obeying the law, which is rooted in a profound and enthusiastic belief that the law is not only a tool of secular policy, but also a part of the ultimate purpose and significance of life. " Without modern legal concepts and citizens' universal belief in law, it is impossible to form citizens' law-abiding spirit and good atmosphere of rule of law, and it is also impossible to realize the rule of law. To enhance the legal consciousness and legal concept of all citizens, we must persistently carry out legal education and legal publicity, so that everyone can know and understand the law and establish correct legal values. "Really make everyone know the law, so that more and more people will not only break the law, but also actively safeguard the law." Law embodies the will of the ruling class, which is the requirement of the state for its members' behavior in political, economic, social and other fields, and is the requirement of maintaining social stability, protecting people's lives and property safety and safeguarding national security. The state relies on compulsory state machines such as courts and police organs to ensure the implementation of laws. It is the main connotation of "rule of law" to emphasize the rule of law and restrict people's behavior by coercive means. Law plays an indispensable role in maintaining social order and ensuring social stability. Especially in the period of great social change, the old system can no longer meet the requirements of social development, and it is more urgent to establish new laws and regulations and various rules and regulations. Since the reform and opening up, in order to meet the requirements of the development of socialist market economy, we have attached great importance to regulating people's behavior by legal means, and established the rule of law as the basic strategy of governing the country. Because there is no complete legal system, it is impossible to ensure the smooth development of the socialist market economy. Although morality is also an important part of superstructure, it is different from law. The implementation of morality does not rely on coercive means, but through moral education, with its persuasiveness and persuasiveness, it affects and improves the moral consciousness of social members and makes people consciously abide by these codes of conduct. Morality appeals to people's "conscience" and to people's inner "moral belief". The so-called "persuasion" mainly refers to inspiring people's moral consciousness, stimulating people's moral feelings, strengthening people's moral will, enhancing people's concept of honor and disgrace, cultivating and forming what the ancients called "shame heart", so that people can form the internal motivation of moral behavior in their hearts and form the most important foundation and premise of human moral behavior. The so-called "persuasion" refers to the formation of a wide range of moral public opinion, the cultivation of a good moral environment, and the enhancement of people's sense of moral responsibility, so that people realize that if a person fails to fulfill his moral obligations or violates the moral requirements of society, he will be condemned by public opinion and criticized by the public, and even cause setbacks and failures in his career. The power of public opinion is intangible, but it cannot be ignored. Strong public opinion can have an important impact on some major social issues. It can subtly change people's temperament and temperament, change social atmosphere and form a certain moral atmosphere. Once this kind of public opinion is combined with inner beliefs, it can play a greater role. In a word, law and morality play an equally important role in maintaining and ensuring social stability. They are interrelated and complement each other. Moral norms and legal norms should be combined with each other and work together. With good moral quality, people can consciously enhance positive energy, eliminate evil and promote good, punish evil and promote good, which is conducive to forming a good social atmosphere of pursuing nobleness and encouraging advanced, thus ensuring the healthy development of the socialist market economy and promoting the improvement of the quality of the whole nation.