Teachers must know the ancient system of "Tibetan relatives"

As a legal system that occupies an important position in China's traditional laws, "Tibetan relatives" not only shows filial piety, but also embodies the ethical spirit of "rule by courtesy and rule by law", which is not only a concern for human ethics, but also plays an important role in maintaining social stability and harmony at that time.

(A) Pre-Qin period: the bud of the idea of "relatives hiding from each other"

The germination of the system of "concealment between relatives" can be traced back to the Western Zhou Dynasty. Judging from the existing literature, the earliest record of advocating the crime of not reporting between father and son is in Mandarin? Zhou Yu: "In the twentieth year of King Xiang of Zhou (632 BC), Dr. Wei Yuan complained that his husband Wei Chenggong was the leader of the League at that time. When King Xiang of Zhou opposed Jin Wengong's acceptance of the case, the reason was:' The husband, the monarch and the minister have no prison, and the father and son will be imprisoned, so there is no ups and downs.' " It was Confucius in the Spring and Autumn Period who first proposed that father and son live in seclusion. "The Analects of Confucius Lutz" said: "Ye Gong said to Confucius,' Our party is straight, and its father is arrogant, and his son proves it." Confucius said:' the straightness of our party is different, and the father is the son and the son is the father, and it is straight in it.' "There is the closest blood relationship between father and son, which is the love for nature. It is natural to hide from each other, which is in line with human ethics. Since then, tolerance and forbearance have been affirmed and advocated by Confucianism in theory.

Mencius, an Asian sage, put forward that brothers should also forbear on the basis of Confucius' theory of father and son hiding. "Dedicated" cloud: "Tao should ask:' Shun is the son of heaven, a scholar, killing people? "Mencius said:' Persevere, do it for yourself.' But shun can't help but follow. Say:' Is it forbidden for a husband to avoid evil? The husband suffered. "If all goes well? Yue:' Shun despises the world and still abandons me. Steal away, follow the seaside, be happy all your life, and forget the world with joy. "At this time, the inclusion of relatives is only a moral concept and has not become a legal system.

Qin Law first stipulated the concealment system in the law, which stipulated: "If a son tells his parents, if a servant tells the Lord, and it is not a public office, don't listen. And Sue, Sue. " However, the Qin dynasty did not form a systematic system of concealment between relatives, which can only be said to be reflected in law.

(2) Han dynasty: the determination of the system of "relatives hiding"

With the strong advocacy and personal practice of the rulers, the policy of "filial piety" in the Han Dynasty was well implemented. In this social atmosphere of paying attention to filial piety, the legal provisions of "hiding before sitting" formulated in the early Han Dynasty were incompatible with the moral and ethical concepts of the society at that time, which was no longer suitable for the national conditions at that time, and reform was imperative. At the same time, after decades of recuperation in the early Han Dynasty, the economy has been restored and developed, and the country has accumulated considerable financial and material resources. At the beginning of Han Dynasty, the policy of "inaction" based on the thought of Huang Lao couldn't meet the needs of the changing situation, and the status of Confucianism gradually improved. During the period of Emperor Wu of Han Dynasty, Dong Zhongshu, a great scholar, put forward the idea of "ousting a hundred schools of thought and respecting Confucianism alone", which was accepted by Emperor Wu of Han Dynasty, and Confucianism gradually became the mainstream of society. Some Confucian scholars criticized the rule of "hiding before sitting" according to Confucian ethics. When Xuan Di was in the Han Dynasty, Huan Kuan expressed his position of advocating forbearance between father and son and opposing seclusion between father and son by means of salt and iron: "Surrender the law of seclusion, abolish the kindness of the same flesh and blood, and punish many crimes. I heard that parents are guilty of their children, but don't they want to plead guilty? The son is hidden by his father, and the father is hidden by his son. I have never heard of father and son sitting together. "

In the fourth year of Emperor Gaozu's Xuandi, under the influence of Dong Zhongshu's Chunqiu Judgment and Huan Kuan and other Confucian scholars, Xuan Di officially confirmed the legality of "relatives hiding" for the first time in the form of letters. The imperial edict said: "The love between father and son, the way of husband and wife, is natural. Although there is a disaster, it is still alive, and sincere love is tied to the heart and kind. How can it be violated? " From now on, parents, wives, husbands and grandfathers should not sit down. His parents hide their children, their husband and wife, and their parents hide their grandchildren. They all committed capital crimes. Ding Wei, please. "The imperial edict of Xuan Di, Emperor Gaozu, not only legally recognized the legitimacy of" concealment between relatives ",but also specifically determined the scope of application of" concealment between relatives ":(1) family members within three generations, that is, grandparents, fathers and sons, and husband and wife; (2) Anyone who conceals his elders (i.e. children, parents, wives and grandparents) shall not bear any legal responsibility; (3) Elders who conceal their inferiority (that is, parents conceal their children, husbands conceal their wives, grandparents conceal their grandchildren) are generally not liable. However, if you commit a capital crime, you must report it to Ting Wei, the highest judicial officer of the Central Committee, for discretion. Generally, you can reduce or exempt the punishment from ordinary people.

(3) Wei, Jin, Southern and Northern Dynasties: The system of "relatives hiding from each other" developed in twists and turns.

During the Wei, Jin, Southern and Northern Dynasties, wars were frequent and dynasties changed. The social unrest in this period made the system of "Tibetan relatives" not well implemented. Many Confucianists criticized that the legal provisions and practices in this period violated the principle of "concealing relatives" and implicated relatives. At the end of the Han Dynasty, Wei Chu, Gao Rou, Lu Yu and others criticized the phenomenon that "soldiers are killed when they are recruited, and wives are tested when they try". The People's Health Exhibition in the Eastern Jin Dynasty opposed the practice of "Kao (Kao) Zi to prove the father's death" or "flogging parents to ask where Zi is". Cui, a Ren Wei of the Northern Dynasties, opposed "letting brothers and sisters testify against each other" in the trial on the grounds that it would seriously damage ethics. Cai Kuo believes that the method of forcing relatives to testify is "begging for mercy because they are uneducated".

During the Wei, Jin, Southern and Northern Dynasties, due to the dramatic changes in the political situation, the system of "concealment of relatives" which focused on maintaining social and family stability was affected. However, the process of legalization of Confucianism has further developed during this period. After the Sima family unified the whole country, the establishment of the Western Jin regime deepened the combination of Confucianism and law. During this period, the system of "quasi-five-service punishment for crimes" between relatives, which represents Confucian legal thought, officially entered the law. During the Southern and Northern Dynasties, Confucianism was further combined with the legal system. The formulation of Chen's "official position" in the Southern Dynasties and the appearance of "Ten Crimes" in the Northern Qi Dynasty are all good proofs. The intensification of the legalization of Confucianism will eventually make the system of "concealment of relatives" representing Confucianism recognized and developed, which was proved by the maturity and completeness of this system in Sui and Tang Dynasties.

Sui and Tang dynasties: the mature and perfect stage of the system of "relatives hiding from each other"

Sui and Tang Dynasties after Wei, Jin, Southern and Northern Dynasties was the peak of the development of feudal system in China, and politics, economy and culture all reached new heights in this period. The system of "Tibetan relatives", which represents the combination of Confucianism and legal system, gradually matured and improved during this period. Taking the provisions in the Law of the Tang Dynasty as an example, the general principle of "cohabitation as concealment" was established for the first time in the Law of Famous Cases, which expanded the scope of concealment between relatives from relatives to "cohabitation as concealment", reflecting the enlightened rulers and the development of the system of "concealment between relatives" in this period. The Law of Famous Cases stipulates: "If you live together, if you have made great contributions to your grandparents and grandchildren, if you are granddaughters-in-law, your husband's brother and brother's wife, your's guilt will be hidden. It is not worth mentioning that slaves are the main hidden part. ..... Its small advantages are hidden below and reduced to third class. "As far as this regulation is concerned, all relatives who live together (regardless of the clothing system) can hide from each other, and relatives who don't live together can also hide from each other. Relatives who don't live together can also be punished according to the distance of the clothing system. In order to implement this general provision, the Law of the Tang Dynasty made a specific provision of 10: (1) Not only the relatives of the above-mentioned criminals are not punished, but also the companions who hide compatible hermits (accomplices of relatives) are not allowed to sit. (2) Inform the arrest news to make relatives escape without punishment. (3) Interrogators shall not force relatives to testify, otherwise they will be guilty. (4) Don't tell on your relatives. Sue grandparents and parents for being unfilial; It is also guilty to sue other respected relatives. Certificates of respected relatives issued by the defendant shall be regarded as voluntary surrender and given a lighter punishment. In the future, "mutual infringement" can be reported. (5) Don't tell on humble relatives. " Tell Shao Gong that he is modest and young. Although he is true, his staff is 80, and his great achievements are reduced by one. "But the father told the children not to sit down even if they falsely accused them. (6) After helping my father and ancestors escape from prison, they may not be arrested again for fear of punishment. (7) It is not allowed to arrest relatives who commit crimes together with themselves and surrender to the authorities. (8) Criminals who have to reveal their relatives during the trial are not regarded as informers. (9) Anyone who exposes a relative's rape by arresting an outsider who commits rape together with his relatives shall not be regarded as a report. (10) Conspiracy against the above-mentioned crime of seriously endangering state affairs must be reported.

Looking at these provisions about "relatives hiding" in the Law of the Tang Dynasty, we find that the design of this system in the Law of the Tang Dynasty is very reasonable and thorough. In terms of style, the Law of the Tang Dynasty has general provisions in famous articles and specific provisions in the following articles. From the content point of view, these laws and regulations complement each other and expand the principle of "Tibetan relatives" into a series of systematic legal provisions with detailed contents and easy implementation. "Hidden Family" was completed in this period.

(5) From the Song Dynasty to the Ming and Qing Dynasties, the system of "relatives hiding from each other" changed slightly on the basis of inheriting the laws of the Tang Dynasty.

After the Tang Dynasty, the rule of "relatives hiding from each other" was slightly increased or decreased on the basis of the provisions of the Law of the Tang Dynasty according to the specific situation at that time. Among them, the Song Dynasty, which followed the Tang Dynasty, inherited the Tang law most faithfully, and the provision of "relatives keeping secrets" in the criminal code of the Song Dynasty was almost a copy of the Tang law. The Yuan Dynasty, established by nomadic civilization, also continued to retain the system of anonymity. For the first time, the Great Yuantong System used the charge of "acting in the name of a line and violating the righteousness", that is, "all the scholars testify the father, the slaves judge the master, and the wives, concubines, brothers and nephews are incompatible." Anyone who commits a crime in a justified way is a weathering station and is prohibited. "The concealment system in the Ming and Qing Dynasties is basically the same as that in the Tang and Song Dynasties, but the prosecution of relatives is compatible. Crimes are generally lighter than those in the Tang Dynasty, and the scope of concealment includes wives and son-in-law. Daming Law stipulates that "foster relatives", "cohabiting relatives can tolerate each other's sins", "slaves can't sue the Lord" and "brothers can't testify against their brothers, wives can't testify against their husbands, and slaves can't testify against their masters". Article 180 of the Great Fresh Criminal Law stipulates that whoever conceals criminals or buries evidence for the benefit of relatives may be exempted or given a mitigated punishment.

The laws of the Tang, Song, Yuan, Ming and Qing dynasties even expressly stipulated that relatives who were required by law to hide from each other were not allowed to testify, and officials who violated the law would be punished by flogging. This fully shows that the feudal ruling class attaches great importance to the maintenance of family affection and its ethics.

After the reform in the late Qing Dynasty, only the system of hiding relatives was retained. At the end of the Qing Dynasty and the beginning of the Ming Dynasty, the system of hiding relatives continued to be used. The laws of this period have provisions to protect relatives from punishment, connive and facilitate relatives to escape and mitigate punishment, and relatives have the right to refuse to prove each other guilty. It can be seen that the concealment system has become an individual right and is protected by national laws.