Kneeling to find the details of the mediation system in the Ming and Qing dynasties

Ancient Chinese legal tradition and system of "mediation to settle disputes"

(I) Overview of the mediation system in ancient China

Confucianism and successive rulers advocated the "no-claims-is-supposed-to-be-suggested" principle, which aimed at pursuing a "harmonious society" and thus realizing a "litigation-free world", an idealized state. The purpose of the Confucian culture and successive rulers was to pursue a "harmonious society" and realize a "litigation-free world", which is an idealized state. However, in reality, it is difficult to avoid the objective existence of various disputes and contradictions, in order to narrow the gap between the ideal and the reality, to achieve "noble and hold the middle" and the stability of the order, the ruling class had to explore a number of "litigation-free" ways and modes. Thus, successive dynasties have taken the concept of "no lawsuit is a request" and established the legal mechanism of "mediation to settle disputes".

The ancient Chinese system of resolving disputes through "mediation" is called "and interest" or "and right", or mediation.

The words "and interest" and "and right" have been recorded in the bronze inscriptions of the Western Zhou Dynasty. In the Western Zhou Dynasty, in the local official history, there is a "mediator" of the post, its function is to "Secretary of the people's difficulties and harmonize. In the Qin and Han Dynasties, the county below the township, the township has a rank, Scrooge and three old, in charge of moral education and mediation affairs, mediation can not be prosecuted to the county court. The Han Dynasty has established a set of more rigorous judicial mediation system. The duty of the township啬夫 was to "listen to lawsuits", that is, to examine and mediate in order to quell the lawsuits. Tang Dynasty on the general civil disputes, the importance of mediation means to solve. Many officials gained the reputation of being good and honest officials because they were good at resolving civil disputes through mediation. In the early Tang and Song dynasties, mediation was a critical period in the shaping of the mediation system. In the Song dynasty, mediation was basically institutionalized, and the mediation system was confirmed by law, and mediation was introduced into the judicial process. The Laws of the Tang Dynasty stipulated that "mediation was first carried out by the local authorities in the townships". In the Song Dynasty, it was stipulated in the law that "the magistrate should give priority to indoctrination in his office, and punishment should be the last thing to be done. Whenever he hears a lawsuit, he will advise the father and the son to rest and teach them to be kind, and between the brothers, he will advise them to be loving and friendly". To the Yuan, Ming and Qing dynasties, mediation has been perfected. In the yuan dynasty, to give the mediation system to the legal effect, emphasizing that all the mediation of the conclusion of the case, the parties shall not be re-indicted. The Ming Dynasty formulated the "teach the people list text". At the same time, the Ming Dynasty states and counties set up "affirmation of the pavilion", specializing in mediation of civil disputes, not decided, and then to the government. To the qing dynasty, mediation has become a common means of civil litigation. The Kangxi Emperor had mediated the settlement of lawsuits with the "elimination of theft", "complete grain" and the same importance. There are detailed provisions in the Qing Laws.

(2) Classification of ancient mediation system

Ancient Chinese mediation system, according to the identity of the mediator, can be divided into official mediation, quasi-official mediation and civil mediation.

1, official mediation

Official mediation is one of the duties of local officials, also known as state and county mediation, the most authoritative. Official mediation is not a fixed procedure in the law, but in the actual operation of civil disputes has an important position, it is always prioritized in the handling of litigation. Through mediation, the lawsuits and prisons were cleared up, which was an important indicator of the performance of local officials, and also an important indicator of the examination of officials in the grand plan, and the local officials who "took care of their own lawsuits and tried the cases as they came in, and made a judgment in an open-minded manner, and never delayed or dragged their feet" were often given an excellent grade in the grand plan. Therefore, the local officials for the self-care cases, first focus on mediation, mediation can not be, only to be adjudicated.

Official mediation is generally accepted by the case of the governor of the parties to the rationale of the persuasion, something also make the relatives and neighbors to participate in mediation, to seek their views. After the official mediation, it is necessary to set up a Ganjie and other "no words", "and the right state" to apply for the official record, to show that the end of the matter.

2, semi-official mediation

Semi-official mediation, that is, the government approved the civil mediation, that is, the government received the petition, that is, the circumstances are considered to be minor or related to the ethical relations of the relatives and local customs and habits are not convenient to the public arraignment, it will be handed over to the clan chiefs, township insurance to solve a mediation system. If the mediation is successful, the case will be reported to the government and canceled; if the mediation is not successful, the reasons will be explained and the case will be handed over to the government to be dealt with. The government-approved civil mediation is a semi-official mediation.

This kind of mediation is typical of the Qing Dynasty. In the Qing Dynasty, state and county officials in addition to personal mediation in the hall, and sometimes also batch of township insurance Li Lao mediation, and sent to assist. Existing files are often seen in the "order to check the difference between the proper place", "with the township policy Jun Oracle Anfen" and other approvals. According to this order, the village insurance summoned the two houses to mediate, and the mediation situation and treatment opinions submitted to the government. If the mediation fails, a reply stating that the two groups are unwilling to take a private break is required, and then the government submits the case to the court for 1,000 certificates. If the mediation is successful, the case will be canceled. Because most civil disputes occur in the township, so the township insurance mediation, the ears and eyes to hear and see, easy to get the truth. On the contrary, "between the state and county paperwork, may not get all the information". Therefore, this kind of semi-official nature of the township protection mediation, is also a common and effective form. Although the Qing law stipulates: "all fields and soil household marriage shall not be asked about the bail armor", but in practice prohibited. In order to solve the conflict between the provisions of the law and the actual situation, it is emphasized that the township protection is responsible for its own mediation and the consequences, and the government is in the "supreme" position of reviewing and approving the mediation. Civilian mediation and government mediation closely, forming a benign interactive relationship, not only better quell disputes, but also effectively maintain social stability.

3, civil mediation

Civil mediation, that is, the parties to resolve disputes and invite intermediaries to mediate, so that the dispute can be resolved a kind of activity. Folk mediation is a kind of extra-litigation mediation, mainly includes three forms: clan mediation, township song relatives mediation, Ri Jia Xiangbao mediation.

Clan mediation is one of the most common ways to resolve civil disputes in ancient times. In this type of mediation, clan parents are the main body of mediation, and family law is the legal basis used by clan parents to mediate and adjudicate civil disputes within the clan. When a dispute arises between members of the clan, the patriarch will generally first persuade and educate them, and then mediate on the merits of the matter itself. The government generally recognizes the results of clan mediation and the decision of punishment. For example, the "Tang Law Review" stipulates that: "Punishment shall not be carried out in the country, flogging shall not be abolished in the family." The Qing dynasty canon example" is clearly pointed out: "...... patriarchs and clan leaders for persuasion and moralizing household marriage and land competition has the power to mediate.

Neighborhood mediation, i.e., by friends, relatives, neighbors, or virtuous people, etc. to intercede, persuade the mediation method. This type of mediation is more flexible, there is no time, place, form of mediation restrictions, the mediator by the parties voluntarily selected.

Li jia xiang bao, refers to the mediation conducted by the governors of grass-roots people's self-governing organizations, such as xiang, li, bao, jia, and so on. The "to the yuan new frame" stipulates: "all the marriage, family property, land, debt, if it is not a violation of the law, and listen to the president of the reasoning, so as not to make the waste of agricultural work, disturbing the lawsuit". In the Ming Dynasty, the most important way of civil mediation was the mediation of the Rilao. The mediation of civil disputes was mainly carried out in the "Affirmation Pavilion" which was specially set up in each township. The mediation of general civil disputes by the lilao was a necessary stage. "Civil marriages, land, fights, disputes, and all other matters are not allowed to be brought to the court, but must be mediated by the elderly of this administration." Of course, the mediation of the old man does not have a mandatory effect, and is willing to listen to those who listen; those who do not want to and, allowed to sue the government.

(D) the ancient Chinese mediation system principles and characteristics

Whether it is the government mediation, or civil mediation, must follow the following principles:

First, the scope of mediation is a civil case and minor criminal cases, beyond the scope of the law that is not allowed.

Second, the mediation is really under the constraints of state power, and is a complementary form of trial with the state and county.

Thirdly, all neighbors and clans involved in mediation must be guided by the purpose of settling disputes and benefiting the country and the people, and must not take advantage of the situation to profit from it.

Fourth, mediation is compulsory, and is a mandatory procedure for dealing with civil disputes in general. The parties concerned are generally not allowed to sue the government, or else they will be regarded as "overstepping the bounds of the lawsuit" and will be punished.

Fifth, the basic basis for mediation is the law of the land, and the application of other sources of civil law must not be contrary to the law of the land, so as not to affect the uniform application of the law.

Sixth, the guiding principle of mediation is traditional morality, the core of which is ritual.

(E) The scope of application of the mediation system in ancient China

Specifically, mediation in ancient China was mainly applied to the civil sphere, and criminal cases could only be limited to minor criminal offenses; major criminal cases did not fall within the scope of mediation, and had to be heard by the judiciary in a public trial. Mediation and trial by the judiciary, the two constitute a close complementary relationship.

(F) Other ways and means for the purpose of "no litigation"

China's ancient legal system for the pursuit of "no litigation" to mediation as the most important, but there are also many other ways. In order to pursue the goal of litigation, the Western Zhou Dynasty to raise the cost of litigation, "to two made to prohibit people from litigation, such as the bundle of vectors in the court, and then listen to it. To ban the people's prisons with two agents, into the junjin, three days, and even to the court, and then listen to it." That is to say, through the payment of the bundle of veil, pay junjin and other similar to today's litigation costs, to achieve the "ban on people's lawsuits", "ban on people's prisons".

Not only this, but also the patriarchal concept of "kinship and respect" and "kinship as concealment" have been used throughout the ages to set restrictions on various aspects, including the level of trial, jurisdiction, and the statute of limitations, in order to realize a quiet litigation and litigation-free society. The feudal legal code usually restricted the people's right to bring lawsuits on their own, for example, a young man could not sue his elders, and a lowly man could not sue his elders; the right of women and the disabled to bring lawsuits was either limited or completely deprived.

Taking the litigation system of the Tang Dynasty as an example, the Tang Law made strict and detailed restrictions on both prosecution and acceptance of lawsuits, covering all aspects of litigation form, status, age and ability. Typical of the Tang dynasty began to civil litigation on the "service limit" provisions. The so-called "service limit", refers to the government in order to avoid litigation on both sides of the then people because of the lawsuit and affect the agricultural production, the acceptance and judgment of civil cases of the limit.