The Transformation of the Ancient Judicial System from Penalty to Law

The ancient Chinese judicial system, in the long process of development and evolution, distinguished itself from other legal systems in the world by its unique and distinctive features. A series of systems created in ancient China, such as the system of judges' responsibility, the system of imperial supervision, the system of recusal, and the system of reviewing the death penalty, are the better systems in ancient justice, which not only played a useful role in the historical conditions at that time, but also some of the systems are still useful for our socialist legal system construction today.

Looking at the ancient Chinese judicial system over the past 4,000 years, we can summarize some of the following basic features.

(a) Highly centralized, the emperor has supreme power

This is the most essential feature of the Chinese judicial system and even the traditional Chinese legal system. Ancient Chinese society has always practiced authoritarian rule, and the law comes from the imperial power and is used to maintain the imperial rule. The traditional Chinese judicial system took thousands of years to germinate, develop, mature and disintegrate, and the influence of the principle of imperial supremacy was the most obvious.

The supreme ruler of successive dynasties used his supreme power to impose personal dictatorship. In slave society, the monarch's "life" was the law, and in feudal society, the emperor had supreme power, and he was both the supreme legislator and the supreme judge. Since the establishment of the feudal dictatorship by the Qin Dynasty, the supremacy of the emperor has been the basic organizing principle of state power throughout the ages, and it is also a concept that is generally accepted and believed in by people of all classes, from top to bottom. Confucianism takes the "Three Principles and Five Constants" as the most fundamental ethical principles, of which "the ruler is the principle of his subjects" is the core, and the power of the ruler has always been in the irreplaceable central position in both social and political life. In the legislative aspect, the feudal monarch "mouth the heavenly constitution", to their own will to legislate, the successive generations of laws are ultimately expressed in the form of the emperor's personal will. In the judicial field, the feudal emperor controlled the fate of his subjects and had the power of life and death. From the Qin to the Qing Dynasty, the emperor had been the highest trial level of the national judiciary, holding the final judgment of all major cases.

From the point of view of the setup of the judiciary, China's ancient judiciary experienced a historical evolution from simple to complex, from coarse to fine, and ultimately to centralized power. In the judicial system, China's ancient judicial organs from the Shang and Zhou until the Ming and Qing Dynasties, gradually from the unitary system of the Sikou or the court officer into the three law divisions, the three law divisions is the division of labor, mutual constraints of the mechanism, functioning well, but from the Song to the Ming and Qing Dynasties, the three law divisions of the power gradually centralized to the Ministry of Justice, and ultimately by the emperor's control; in the trial, the judiciary has become an imperial tool, all the important cases, difficult cases have to be ruled by the emperor personally In the trial, the judiciary became an imperial tool, and all serious and difficult cases had to be decided by the emperor himself, and only the emperor exercised the final right of judgment, and the emperor could also directly understand and intervene in the work of the judiciary by means of direct prosecutions and the recording of prisoners. In addition, the trial of other cases had to be reported to the emperor on a regular basis. In handling cases, the emperor could either abide by the existing laws or act expediently and disregard the laws. Since the emperor held the final judicial power, such a case was not final until the emperor's trial, so there was no such thing as the modern system of "two final trials", where cases were reviewed at each level and there was no restriction on the final trial. Before the Qin Dynasty, general cases could be dealt with by the county and county judicial organs themselves, to the two Han Dynasty, the implementation of doubtful prisons reported to the system, and later gradually evolved into a level-by-level review system, to the full maturity of the Ming and Qing Dynasties. Cases started by the county level trial, but after the trial

needed to be filed and registered in the "cycle of books", waiting for the higher authorities to check for major cases to be reported directly, so only the emperor as the highest trial judge, hold the final judicial power. Therefore, the justice of the ancient Chinese justice is not determined by the merits of the judicial system itself, but to a large extent depends on the emperor's wisdom and ignorance, the judicial order is often due to human factors and damage, ultimately leading to the darkness of justice, which is the inevitable result of a high degree of centralization of power.

(2) Confusion between the judiciary and the executive

The unity of the judiciary and the executive is another distinctive feature of the traditional Chinese judicial system. This feature is manifested in the centralized institutions, the emperor not only often by his own will to break the established "common law", but also through the establishment of a number of administrative, military and even internal institutions involved in the trial system, in order to constrain the possible tendency of independence of the judiciary, and make it completely subordinate to their own orders. Therefore, it can be said that in the centralized system of authoritarianism in the emergence of administrative justice is an inevitable result.

China's successive judicial organs are subordinate to a branch of the executive branch, is one of the functions of the court, and does not have independence. From the local to the central, justice is subordinate to the executive. In the central government, the Qin and Han court officer is one of the nine ministers of the central government, the Ministry of Justice in the Tang, Song, Ming and Qing dynasties has been one of the six departments of the central government, but these judicial organs are absolutely subject to the emperor's orders, generally subject to the prime minister, the cabinet and other central administrative centers. And at the local level, justice is in the subordinate position of the administration, the Shang and Zhou, the local judicial power by the vassals, after the Qin by the county magistrate, county magistrate and other levels of local administrative organs. Although the local government also has a decision of the Cao (Han Dynasty), the judicial Counselor military (Tang Dynasty) and other full-time judicial officials, but in the trial level, the lower level to obey the higher level of the formation of the administrative subordinate relationship, the judicial power has never been independent.

If there is a division of labor between the executive and the judiciary in the central institutional setup of traditional Chinese society to meet the needs of social management, at the local level, the unity of imperial power is directly manifested in the unity of the judiciary and the executive. The local governor is the same level of judicial judges, the judicial case is also the main duties of the local governor, without having to set up a separate judicial body to specialize in the administrative institutions to perform judicial functions. If there is a mistake in assisting in the adjudication of cases, the governor shall be held responsible for it.

It should be said that the phenomenon of magistrates taking on judicial duties or the phenomenon of judicial administration is not without reason. On the one hand, this is an inevitable stage in the development of the judicial system. In ancient times, when the division of labor in various fields of social management was not very obvious, the unity of the two can, on the contrary, improve the efficiency of management and effectively meet the needs of society. From this point of view, what is special about the unity of justice and administration in the traditional Chinese judicial system is not the form of this unity per se, but mainly the long-term continuation of this form. This involves the other and most important aspect, namely, the influence of authoritarian imperial power mentioned above. In ancient China, the local officials were only the agents of the emperor in the localities, or the administrators of the imperial power in the localities based on the principle of "the king sells his titles, and the minister sells his intellect", so his existence and in what way depended only on the local needs of the authoritarian imperial power. As already analyzed, the most essential characteristic of the autocratic imperial power is the monopoly of power, he is not willing to permit the emergence of a dual structure of administrative and judicial separation at all levels of the local government, because it will actually hinder the effective implementation of his will. Thus, it became the most logical system for the magistrate to oversee the administration and the judiciary, and the criminal justice system became the magistrate's most important managerial function.

The mixing of the executive and the judiciary led to some undesirable consequences. For example, the handling of judicial affairs by administrative methods. Because, since the handling of judicial affairs is only one of the management functions of officials at all levels, or mixed with administrative functions, the two will often be confused, not easy or necessary to distinguish between the two, which leads to the local officials will tend to deal with judicial affairs in an administrative way. The adverse consequences of this are that it leads to authoritarianism, arbitrariness, contempt for the judicial process and so on. Then there is the lowering of the professional quality of judicial officials. As the magistrates were also in charge of judicial affairs, the quality of judicial cases was determined by the legal literacy of the magistrates. Since most of the local officials in ancient China were selected by nomination and imperial examination and then appointed by the emperor, and the important criteria for selection as an official did not include legal qualities, the legal literacy of local officials at all levels was generally not high.

(C) civil and criminal division

Ancient China, although since the Zhou Dynasty, there is a simple distinction between civil and criminal, but has never been able to form a modern judicial system in the sense of civil and criminal definitions. The so-called "the rise of a generation, there must be a generation of law", the ancient Chinese dynasties in the legislation of the civil law, criminal law, procedural law, but the combination of all laws, mainly criminal, civil and criminal mixed, substantive law and procedural law mixed. Expressed in the judicial system, the formation of the civil and criminal indistinguishable, heavy criminal and light people.

The reason for this civil and criminal phenomenon is multi-faceted:

First of all, the natural economy has always been dominant, the development of commodity economy is relatively weak. Since civil legal relations are the legal expression of the general requirements of commodity economic life, the development of the commodity economy directly determines the development of civil law. In ancient China, the backward and conservative natural economy dominated for a long time, binding the development of civil legal relations.

Secondly, the harsh rule of feudal autocracy always implemented the policy of emphasizing agriculture and suppressing commerce. From the Qin Dynasty to the Qing Dynasty, two thousand years, the authoritarian system has been strengthened, excluding the possibility of legislation in any city with a more developed commercial economy. Under the authoritarian system, the maintenance of imperial power and the consolidation of the state were the same, and this was the main focus of the legislators. The interests of private individuals were regarded as "trivial" and of little importance. In order to protect the authoritarian system based on the natural economy, feudal rulers of all times vigorously implemented the policy of emphasizing agriculture and suppressing commerce. Since the Ming and Qing dynasties, the implementation of the policy of prohibiting the use of the sea has seriously destroyed the overseas trade and the budding capitalist factors. Under these circumstances, merchants also turned to land management as their more reliable source of financial strength.

Thirdly, personal dependence persisted. It was not possible to provide widely the "private equality" of legal relations of rights and obligations, which was an important condition for the development of civil law.

Fourth, the family law and clan rules play a practical role in regulating civil legal relations within the clan. These so-called family laws and rules are essentially customary laws within the family, which play a practical role in regulating civil legal relations within the family, such as property, inheritance, marriage, etc., and are in harmony with and complementary to the national law.

Because civil and criminal would have no way to distinguish, and therefore even less to talk about the division of civil and criminal proceedings, is basically a set of criminal procedure. Many of China's ancient marital property problems are solved by criminal means. For example, the Tang law stipulates that if a debtor violates the contract and does not pay it, and if a woman who has been promised marriage has reported her marriage and has a private contract and repents of the marriage, she will be sentenced to imprisonment. Therefore, a considerable part of the ancient household marriage cases were criminal cases. Ancient Chinese litigation law does not have a special code, but in the Tang law, Ming and Qing law have litigation provisions, such as the Tang law in the fight lawsuit, the Ming and Qing law in the lawsuit, catching the death and so on. The ancient Chinese judicial system was designed to safeguard the interests of the privileged ruling class, and the substitution of punishment for the people also reflected its purpose of suppressing the people and consolidating the rule.

(4) Combination of rites and laws, with Confucianism as the theoretical basis

The patriarchal system and family rule, which are bound by blood, were the basis for the existence and consolidation of the ancient Chinese state. In ancient Chinese law, ritual occupies an important position, "for politics first ritual, ritual is the basis of politics", ritual is both moral and legal norms.

Qin Shi Huang to the rule of law, the early Western Han Dynasty is largely "the hegemony of the road miscellaneous". To the period of Emperor Wu of Han Dynasty, due to the implementation of the policy of "depose the hundred schools of thought, exclusive respect for Confucianism", Confucianism as the source of Confucianism jumped to the dominant position in society, and became the theoretical basis and guiding ideology of nearly two thousand years of feudal law, and based on the gradual formation of a system of feudal legal thought with the rites and laws of the merger of the basic features.

From the beginning of the Han Dynasty, with the establishment of Confucianism and the Han Confucianism advocated the interpretation of the law, opened up the way to introduce the rites into the law, to the Tang Dynasty, the combination of the rites and laws reached a peak. The Tang Law Review" clearly announced: "virtue and rites for the basis of political education, punishment for the use of political education", the two can not be abrogated, such as "dawn and sunshine," and so on and so forth. The combination of rites and punishments is mainly manifested in the following aspects, first, the rites adjusted by the patriarchal ethical behavioral norms, constituting the basic content of the feudal law

. Secondly, in all civil and minor criminal cases belonging to the category of mediation, the rites played the role of the actual adjustment of the law. Thirdly, for certain cases, the judgment, "in the rite of passage", affinity, inferiority and superiority, the same crime is not the same punishment. Fourthly, the system of "five suits", which differentiated between blood relatives, became an important basis for determining crimes and sentencing. The system of "five clothes" began in the Han dynasty, to the Yuan, Ming and Qing dynasties, the mourning clothes listed in the first of the criminal law, not only for criminal adjudication is of great significance to the settlement of civil disputes is also vital. The funeral dress chart is listed at the top of the criminal law, is another concrete manifestation of the introduction of rituals into the law.

The influence of Confucianism on the feudal judicial system is mainly manifested in the following: first, the legal form of the Confucian three programs, "the king is the principle, the father is the principle of the son, the husband is the principle of the wife," the doctrine of the inviolability of the right of the king, the father's right, the right of the husband, and violators of the severe punishment; second, throughout the "virtue", "the main punishment", "the main", "the main", "the main", "the main", "the main", "the main" and "the main". Secondly, the spirit of "virtue and punishment are complementary to each other" and "the clear punishment and education" is carried out throughout the country. The use of morality and punishment as a means of maintaining rule has a long history in China, and after the Han Dynasty Confucian scholars fully demonstrated the role of morality and punishment, the scope of its application, and the relationship between it and each other became clearer. After the Han Dynasty, most rulers adopted "Virtue and Punishment" and "Ming Penalty and Piloting Education" as the established policies guiding legislation and justice; thirdly, the Confucian classics were codified through the determination of prisons in the Spring and Autumn and the practical adjustment of civil litigation by rituals; and fourthly, it was confirmed that the execution of punishment was carried out in the autumn and winter, so that Confucianism could be used as a means of safeguarding rule. Fourth, it confirmed the execution of punishments in autumn and winter, institutionalizing the Confucian idea of "executing punishments in heaven". From "citing the classics to decide on prisons" and the implementation of autumn and winter execution, to the provisions of the "Ten Great Crimes" and the "Eight Discussions", etc., many of the legal contents were based on the hierarchical and ethical relations of Confucianism as the criteria for conviction or pardon, and were used by successive rulers as the criteria for the conviction of crimes. Many of the laws were based on the hierarchical and ethical relationship of Confucianism as the criterion for conviction or pardon, and were honored by the rulers of all generations. Therefore, including the judicial system, "rites" have also been combined with it, and the spirit of "punishment and rites are compatible" and "rites and rites are integrated into punishment" runs through it. If a relative sues an elder or a concubine sues her husband, he will be sentenced to a heavy penalty or even death, but on the contrary, he will be acquitted or sentenced to a very light penalty, which not only reflects the Confucian idea of emphasizing "rites" and the humble status of women in China in ancient times, but also embodies the inextricable link between China's judicial system and the rites and teachings of the people.

(E) torture to force confessions, the crime from the confession of determination

Torture to force confessions is the Middle Ages in the handling of criminal proceedings in the countries of the extremely barbaric system commonly used in China is the successive rulers of the interrogation to realize their judicial claims.

In ancient China, confession is generally used as the basis for the case, no confession can not be determined, "crime from the confession" refers to the confession to ultimately determine whether the guilty, what crime. Therefore, obtaining a confession has become a crucial part of the trial process, and the various instruments used in torture derived from this are full of tricks, to name a few, and the person concerned is often unable to endure the pain of the skin and flesh, and the wrongs of beating into confessions.

China from about the Western Zhou Dynasty, on the implementation of torture, to looting and flogging. During the Qin and Han dynasties, torture was not found in law, but according to the records of the Yunmeng Qin Jian, torture had become a legal institution in the Qin dynasty, was commonly practiced, and had actually been legalized. The specifications of torture instruments were stipulated by Emperor Jingdi of Han Dynasty. The North and South Dynasties began to torture written in the law, for example, the Liang Dynasty, the first measurement of punishment (cut off food and drink), the Chen Dynasty, the provisions of the standing test (the prisoner placed in the earth enclosure, flogging, etc.), the Northern Wei Dynasty, the limit of 50 canes, the Northern Qi torture more, more cruel, for successive generations of the inheritance and development of the torture, torture, no moderation, more and more brutal, all the way to the extreme. Tang Dynasty, torture can be institutionalized, "Tang Law" on the torture object, conditions, tools, tortured parts, procedures and how to implement specific provisions. In addition to legal torture, there are a variety of illegal means of torture. Torture for the successive dynasties and the development of the inheritance, gradually legalized, and become a trial system can be reasonably used in the case, because of this, torture to force the means of confession is extremely cruel.

Ancient torture system is linked to the evidence system that favors confessions and crimes from the confession. Although the ancient litigation also collects and uses physical evidence and human evidence, and pay more attention to the investigation site, but more emphasis on confession, confession as the main basis for the case. Under normal circumstances, no confession of guilt can not be convicted, this emphasis on confession will inevitably lead to torture to extort a confession. Torture to extort confessions is a distorted trial system due to the ancient trial characteristics of China's emphasis on confessions and light evidence, is the ruling class in order to maintain its rule and take extremely cruel means.

Conclusion

In the thousands of years of China's legal history, the judicial system has also experienced a process of historical evolution from simple to complex, from coarse to fine, from barbaric to civilized. In this process of development and evolution, there is both inheritance and continuity and change and innovation among the judicial systems of different generations, and this relationship of inheritance, change and innovation reflects the civilized process of China's legal system.

The history of the development of China's ancient judicial system tells us that the judicial system is an important guarantee for the perfect functioning of the state apparatus, and the construction of the judicial system is also an important factor for the long-term stability of a country. Ancient judicial experience and lessons, always remind us of the importance of strengthening the construction of the judicial system.