Chapter 49 Chapter 46 Criminal Law

When talking about Chinese law, everyone likes to study when the statute law started.In fact, this question is irrelevant.There are two sources of law: one is social customs, and the other is the state's requirements for the people.The former is the so-called habit today, and it will not be manifested in writing.However, its relationship with the people is far more important than the latter. The name of Chinese criminal law can be traced back to Xia. "Zuo Zhuan" in the sixth year of Zhaogong, Zai Shuxiang wrote a letter to Zheng Zichan, saying: "Xia had a chaotic government and wrote "Yu Xing", Shang had a chaotic government and wrote "Tang Xing", and Zhou had a chaotic government and wrote "Yu Xing". Nine Punishments." We have no way of knowing the content of these three criminal laws, but this letter from my uncle came from the creation of the punishment book.Its nature should be similar to Zheng Guo's punishment book.We have no way of knowing what the criminal book written by Zichan is. However, in the twenty-ninth year of Emperor Zhaogong, "Zuo Zhuan" also recorded the casting of the punishment tripod by Zhao Yang of the Jin Dynasty.Du's "Notes" said: Zichan's punishment book was also cast on the tripod.Although there is no definite evidence, but Shi Wenbo ridiculed him for "making fire to cast torture instruments before the fire came out", and there is absolutely no doubt about the metal objects that must hit.How many authors can be written?And "Book of Books Lu Xing" said: "The punishment of ink belongs to one thousand; the punishment of punishment belongs to one thousand; Thousands." How can I write it down?However, "Lu Xing" said that it must be a custom rather than a law made by the state, which is very clear.Individuals in society must have their own rules.These rules, since everyone says so, are called vulgar.Since a person has to say this, it is called li (so it is called li, which is also known as Lu).Violation of etiquette is violation of custom, and society will impose sanctions, so it is said: "Those who are out of etiquette will be punished." Or doubting the three thousand rules, it is too troublesome, how can people abide by it?Little do they know that the etiquette mentioned by the ancients is extremely trivial.Every word and action is subtle, and there are rules that should be followed.How is this not the case with us today?We try to silently count the rules we should abide by between words and actions, how can we reduce three thousand rules?But since I was a child, I don't find it troublesome. "Book of Rites Ritual Vessels" says "Three Thousands of Qu Li", "The Doctrine of the Mean" says "Three Thousands of Prestige", and "Lu Xing" says "Three Thousands of Five Punishments". .In ancient times, three was the majority.A thousand words can be counted.If you say it in ten words and you feel it is a few, you can say it is a hundred; if you say it in a hundred words and you feel it is still a little, you can say it is a thousand. If you say it is a thousand, it is still one-third of the total.If the penalty is five hundred, it is said that it accounts for one-sixth of the total.There is still one sixth, and the palace punishment should account for three fifths of it, and the big punishment should account for two fifths of it, so the Yungong penalty is three hundred, and the big punishment is two hundred. These are rough estimates. .If it really refers to the provisions of the law, how is it so neat?However, there is no doubt that the life of the ancient people, in its entirety, was almost dominated by habits.

The habits of society are known to everyone, so there is no need to teach them.If there is something that a person with a country and a family requires from the people, and the people have no way of knowing it at the beginning, they must understand it clearly. "Zhou Guan" promulgates the constitution, "in charge of the constitutional state's punishment and prohibition ('Constitution is called Biao Erxian', see "Zhou Guan·Xiao Zai's Note"), the auspiciousness of the first month, the festival of governing the state, to be announced in all directions." And The governor, the party leader, the family teacher, and Lu Xu all have the act of reading the law according to the people.There are four officials of heaven, earth, summer and autumn, and there are county laws like Wei Zhiwen.Xiao Zai, Xiao Situ, Xiao Sikou, Shishi, etc. are also said to be Muduo.These are all ancient statutes, proclaimed in speech, writing, or pictures.At that time, the more civilized countries must be like this.How can we find out when it started?Those who have no way of knowing themselves have never been taught, and their violations cannot be regarded as crimes, so it is said that "if you don't teach, you will be punished and called abuse" ("The Analects of Confucius · Yaoyue").And the law of the three forgivenesses and the three amnesties, or ignorance, or forgetfulness, or old age, or stupidity ("Zhou Guan·Si Ci"), are also sympathetic to their ignorance.The laws of later generations are farther and farther away from the people's lives; they are incomprehensible to the people, ten hundred times more than in the past;Its cruelty is far more than ancient times.That is to say, the customs of the later generations of society are far less reasonable than the ancient ones.Later generations do not mourn the misfortunes they have encountered, but instead regard the ancient laws as cruel, and boast of their civilization.

The word punishment has both broad and narrow meanings: the broad sense includes all extremely minor sanctions, punishments, accusations, and non-smiles. "Those who come out of propriety enter into punishment", the righteousness begins here.The three thousand rituals are very trivial, so how can one be punished for any violation?As for the punishment in the narrow sense, metal weapons must be used to injure the human body, causing it to suffer irreparable trauma, which is sufficient.The Han people said: "The dead cannot be brought back to life, and the tortured cannot be brought back to life." That is the meaning.This is the original meaning of the word Xing, which originated from the battlefield, and it is applied to enemies, spies and internal traitors, but not to the family.Therefore, the official in charge of punishment is called Shishi (a scholar is a soldier, and a judge is called the leader of a soldier), and he is called Sikou. "Zhou Guan" Situ's subordinate officials can all listen to the prison lawsuit, but the punishment imposed, as for the earth, Jiashi only ends (see below).Those who are attached to the punishment must belong to the scholars, which is just like today's judicial organs and military court trials.Because there are no instruments (weapons) for torture in other institutions.When the punishment is applied to the own clan, it is the captive of the foreign race, and it is regarded as a slave. Afterwards, the crime of the own clan is also regarded as a slave.Therefore, the Yue people cut off hair tattoos, and both hair and tattoos have become criminal offenses in our family.Later, there were tyrannical people who pushed him to spread it, and the punishment of physical disability was endless.The name of the five punishments can be found in "Book of Books Lu Xing". "Lu Xing" said: "Miao people do not use their spirits to make punishments, but the five cruel punishments are called the law. The beginning of adultery is 劓, 刵, 椓, tattoo." 劓, 刵, 椓, tattoo, Ouyang, Xiaoxia Zuo Bin, Gong, 劓, 头头, Shu 勍 (cited in "Shu" under the title of "Yu Shu").Bin is instant.Cutting off the head is a great deal.Shuqing's Shu characters cannot be deciphered, and it is unambiguous that the characters are the same as the tattoo characters.However, the 劓, 刵, 褓, and 黥 in this version are typos. The five punishments in "Lu Xing" were actually created by Miao Min (Miao Min's word Min is a derogatory term, which actually refers to the monarch with Miao, see "Book of Rites Ziyi Shu" quoted "Lu Xing" Zheng's "Note"). Zang Wenzhong in "Mandarin Luyu" said: "A large punishment uses armored soldiers, followed by an axe. A middle punishment uses a knife and saw, followed by a narrow drill. A light punishment uses a whip. The big one is the wilderness, and the small one is the city and court." (It is "five servings and three times". "Yao Dian" says: "Five punishments are served, five servings and three times", that is to say) Armored soldiers used for major punishments refer to battle formations.Secondly, the use of ax and ax refers to Dapi.In the punishment, the knives and saws are used to refer to the 劓, 贵, and Gong.Secondly, use the drill to narrow the ink.The whip is used for thin punishment. Although it is not a metal weapon, the ancients also used trees as soldiers. ("Lu Lan Dang Bing": "When there is no Chi You, the people will strip the forests to fight.") "Zuo Zhuan" In the twenty-seventh year of Duke Xi, Chu Ziyu ruled the army and whipped seven people. It can be seen that the whip is also an army punishment. "Yao Dian": "Xiang is punished by code, five punishments are exempted, whip is used as official punishment, Pu is used as punishment for teaching, and gold is used as punishment for redemption." Xiang is punished by code, that is, the county law Xiang Wei in "Zhou Guan".Liuyou's five punishments are the five punishments mentioned in "Lu Xing".Gold is used as a ransom, which is the law mentioned in "Lu Xing".Therefore, gold must be used, because the ancients used copper as weapons.It can be seen that the so-called "deficient body" punishment all originated from military struggles.As for the ones given to the family, there is an old saying that "teaching and flogging cannot be discarded at home", and it is probably not used together with flogging and flogging.The most serious, but expelled from the family, is the so-called exile. The relocation, exile, and screen of the "Royal Reign" are related to this matter. "Zhou Guan" Si Kou has Yuantu and Jiashi, all of whom serve the Sikong.Huantu and Jiashi are both imprisoned; the servants of Sikong are punished to do hard work. I am afraid that it is already given to slaves, not necessarily to their own clan.See the cruel punishment here, all caused by war.Among the five punishments, the palace punishment for women is closed in the palace (see "Zhou Guan·Si Xing" Zheng's "Note"), which is not inappropriate.The rest is all right. The names of the five punishments in "Zhou Guan Si Xing Zai" are the same as "Lu Xing". "Erya · Interpretation" and "Shuowen" both regard cutting and cutting as one thing.However, Zheng Xuan's "Refutation of the Five Classics of Different Meanings" said: "Gao Tao changed it to patella and changed it to 剕, and Zhou changed it to 剕 to 刖." , cutting is the beheading of the Han people, and its theory is not enough (patella is a physiological term, not a criminal name).From what Chen Qiaocong said, he thought it was true to cut off the left toe, and to cut off the right toe (see "Jin Wen Shang Shu Jing Shuo Kao").However, since the creation of the Miao people, the five punishments have not been changed until the "Zhou Guan" was written.However, the punishment of losing the body in ancient times is not limited to this.Seen in the biography, such as chopping (in ancient times, it was called chopping at the waist. Later, the level of chopping in the battle was different from the head-cutting on the execution ground. As far as the waist is cut, the word waist must be added), 裔 (splitting its limbs and killing it. "Historical Records · Li Si Lie Biography" is written as 矺, that is, "Zhouguan·Silu"), Arm (referred to as removing the clothes) , see also "Zhou Guan Si Lu"), Che Crack (Yi Yue), Hang ("Zuo Zhuan" in the second year of Ai Gong, "Hang Hang for Killing". Hang is the rope used to hang people, and then hanged as a hang Killing), burning (see also "Si Lu"), cooking (see "Gongyang" Zhuang Gong four years), preserved and so on.Preserved meat should be a custom of the cannibal clan, and later became a criminal law.The vice is 馘 (cutting ears), which also originated from war. "Mencius" said that King Wen ruled Qi, and sinners did not have children ("Liang Huiwang Part Two"). "Zuo Zhuan" quoted "Kang Yu" in the 22nd year of Zhaogong, and also said that father and son are brothers, and the crimes are not related.And "Book of Books Gan Oath" and "Tang Oath" both have articles about child killing.It can be seen that confiscating the family members as slaves was also a military law at the beginning.This is nothing more than being a slave. If the so-called family punishment is punished, all relatives will be killed.This is also the method of battle formation to push the punishment.Because of the conflict between the two clans in ancient times, there was a matter of killing captives.In a powerful family, if one person is killed, the clan members often still want to take revenge, so they have to be killed in order to prevent future troubles. "Historical Records Qin Benji": In the 20th year of Duke Wen, "there were crimes against the three clans at the beginning of the law" (parents, brothers, and wives), and this law has been followed for a long time.During the Wei, Jin, Southern and Northern Dynasties, when political enemies were killed, their family members were often involved.Even married daughters are not exempt.It can be seen that the cruelty of war.

The usage and concept in ancient times are very different from those of later generations.That is the ancient "Ming Xing", which is why "Bi Jiao" ("Ming Yu Wu Xing, Yi Bi Wu Jiao", see "Book of Books · Yao Dian"), and later generations only seek to maintain mutual assistance in form.People can get along with each other so that they can (1) be safe and sound, and (2) make progress, all rely on goodwill.Gou makes people treat each other, and people treat society with all kindness. They will surely be able to live in peace with each other, and they can also help each other to make progress day by day. It doesn't matter whether there are mistakes or not in what they do.If they are hostile to each other, they dare not do anything only out of fear of the other party's strength and social sanctions; How to do things that are beneficial to people and society is fundamentally always just business ethics.There is absolutely no way to improve business ethics.People, originally, do not distinguish between others and themselves, and do not distinguish themselves from groups.However, later on, the social organization became more complex, the contradictions gradually deepened, and the interests of others and ourselves gradually clashed. People would destroy the interests of others or the society in order to benefit themselves.To save this evil, social classes must be completely eradicated.The ancients didn't know this meaning, and always wanted to restore the world by enlightenment.If the power of education is insufficient, it is supplemented by punishment.Therefore, its usage focuses entirely on human motivation.That's why it is said that "Spring and Autumn" breaks the prison's ambition ("Chunqiu Fanlu · Essence"), so it is said: "I am still a person who listens to lawsuits, so I will also make no lawsuits? The ruthless can't express their words, fearing the will of the people, this is called Zhiben." ("University") Such hopes will naturally come to naught.The law is a concession so far as not to ask people's motives, but requires them not to destroy the order I want to maintain.No matter what his intentions are, he doesn't ask.So far, the law has lost its original purpose of teaching, and has only become a tool to maintain a certain order.So the phenomenon of "speaking official language" occurred.Knowing that his intentions cannot be questioned, if his behavior is beyond reproach, it is nothing like that.So far, the law has become anti-social.

One thing is that later generations are more progressive than ancient times.The boundaries of the ancient clans have not yet been removed.The power of the state cannot invade the clan group, and sometimes it cannot stop its actions. (1) The members of the clan are then all under the authority of their patriarch.This kind of ethos still persists in the family era. (2) The struggle between clans is often resolved by strength. "Zuo Zhuan" in the third year of Chenggong, when Zhi was released by the state of Chu, he said, "the head (father), he asked the widow to kill the emperor, and he was dead and immortal."In the twenty-first year of Duke Zhao, Hua Fei of Song State said: "I have a slanderous son, but I can't kill him." It can be seen that in ancient times, a father could kill his son exclusively. "Baihu Tongyi·Zhu Fu Pian" says that "the father who kills his son should be punished". "Qu Li" and "Tan Gong" in "Book of Rites" both clearly describe the rituals of revenge for friends and fathers, brothers, and teachers. The editor of "Zhou Guan" was specially set up for the issue of revenge.It is only to make those who have enemies avoid other places; to examine whether revenge is righteous or not; to prohibit revenge should not exceed a certain limit, and it cannot eradicate it.Although the custom of revenge has existed for a long time in later generations, it is still regarded as a righteous act in customs, but in law, it is always gradually prohibited. This is the progress of the laws of later generations compared with ancient times.But the patriarch or patriarch still has a little power to deal with his family members or clan members, and the state cannot intervene, so that everyone is protected; while the state prohibits private revenge, and it cannot really avenge the grievances of the people, nor can it Still not perfect.

The law cannot be left unused for a day. Unless there is a major cultural change and the law of another legal system is adopted, there will never be any fundamental reform.So it is always inherited and gradually changed.The earliest legal code in China is Li Kui's "Fa Jing".According to Chen Qun's "Wei Law Preface" contained in "Book of Jin·Criminal Law", it was Kui who wrote the laws of various countries for Wei Wenhou.Wei Wenhou's reign, according to "Historical Records Six Kingdoms", was from the second year of King Weilie of Zhou to the fifteenth year of King An, that is, from 2336 to 2298 BC in the Republic of China.It can be described as very old.To write this time is to choose parallelism.This book, at that time, probably had a lot of references, and it was taken after some consideration, and it was arranged systematically, and it was considered a masterpiece.Therefore, Shang Jun "took it from Qin Dynasty" and did not recompile it.The trend at this time is that the force of habit (that is, social sanctions) is gradually not enough to maintain society, and it is necessary to rely on the law.However, the law still adheres to the ancient scale, and there are very few things stipulated, which gradually feel that it is not enough. ) net, (4) catch, (5) miscellaneous, and (6) add and subtract with one article.Stealing is trespassing on one's property.A thief hurts the body.Thieves must be caught by nets, so there are two articles on nets.The rest are miscellaneous laws.When the ancients wrote books, they often separated important matters into chapters, and combined the rest into one chapter, collectively called miscellaneous.A medical book handed down since ancient times, titled "From Zhang Zhongjing", is divided into two parts: typhoid fever and miscellaneous disease (miscellaneous disease or Zuobing disease, which is a wrong word), which is one of its syndromes.Catching thieves with nets is divided into four chapters, and other matters are divided into one chapter. It can be seen that the "Fajing" attaches great importance to thieves and neglects other matters, which is definitely not enough to cope with a progressive society.Emperor Gaozu of the Han Dynasty entered the customs, but he did something that went against the evolutionary trend.He said: "I made a three-chapter agreement with my elders: the murderer will die, and the wounded person and the thief will be punished. I will get rid of the Qin law." Because the three chapters and four characters of the agreement are used to people, some people misunderstand that this is the covenant between Han Gaozu and the people. three.In fact, according to Chen Qun's "Wei Lv Xu", the style of Li Kui's "Fa Jing" is "collecting categories into chapters, and concluding things into chapters".Each article contains many chapters. "My appointment with my elders: Fa, three chapters", you should use the word "Yue" to conclude the sentence, and read the word "Fa" again.That is to say, in the method of six chapters, only three chapters are taken, and the remaining five chapters are more, and they are all abolished.The people in the Qin Dynasty were in dire straits, because the politics were too unstable.Arguing exclusively about the law was due to the fact that the jailers at that time formed a custom of their own, using strict law enforcement.It has nothing to do with the number of legal provisions.But this principle is impossible to talk about with the masses.The three chapters of the covenant, all the rest are removed, and the masses are naturally rejoicing.This matter is just a trick to buy people's hearts for a while, and there is no need to discuss it deeply.It cannot last long.Therefore, "Hanshu Criminal Law Zhi" said: "The world is established, "the law of three chapters is not enough to prevent rape."Xiao He recovered the method of six chapters and added three chapters; Shusun Tong also benefited from eighteen chapters that were beyond the reach of the law, making a total of twenty-seven chapters.The trend at that time was that (1) the content of the law should be expanded, and (2) that the content of the law should be expanded, and that it should be codified systematically so as not to be confusing.The first step has already been done in the early Han Dynasty.During the reign of Emperor Wu, there were many political affairs, so more laws were naturally needed.So Zhang Tang and Zhao Yu added more, and the law increased to sixty.Also, the orders at that time were compiled in A, B, C, and D, commonly known as "Ling A", and there were more than 300 articles in total.In addition to the finalized case, the so-called comparison at that time, there were 906 volumes in total.The weight is already too much, and the compilation is extremely disordered. "There are examples of thieves' injuries in the law of thieves, and there are articles about stealing chapters in the law of thieves." Quoting is difficult, and scholars are based on chapters and sentences (the two characters of chapters and sentences initially refer to a symbol, and later they are used as notes. See Yu's writing for details "Chapter and Sentence Theory". The Commercial Press), there are more than ten.Therefore, those who should be used in the judgment of crime are 26,272 articles, more than 7,732,200 words.No one can look at it all, because the treacherous officials can do their best, "those who want to live will be given advice, and those who want to be trapped will be compared to death."So systematically compiling a legal code was really the most urgent thing at that time.During the time of Emperor Xuan of the Han Dynasty, Zheng Chang created his proposal.However, in the end of the Han Dynasty, there was no success.After Wei usurped Han, he ordered Chen Qun and others to work here.Eighteen chapters of the new law were made, but they died before they could be promulgated.After the Jin Dynasty and the Wei Dynasty, Jia Chong and others were ordered to add more and make a total of twenty articles.In the fourth year of Taishi, it was promulgated by the amnesty world, which is the "Jin Law".The first four years of Taishi was 1644 BC.

"Jin Law" is probably compiled according to the system of laws, orders, ratios, etc. of the Han Dynasty, deleting duplicates, extracting them.It's just a tidying up business.But there is one more thing to note, that at this time there must be many principles of Confucianism, which are mixed into the law and become clauses.The Han people always help the scriptures and righteousness to break the prison.Modern people think it is strange.In fact, this is just a generalized application habit.Customary law in a broad sense could have included doctrine.Confucianism was prevalent at that time, and Confucian theories would naturally be applied to the law. "Hanshu" and "Notes" quoted Ying Shao as saying: Dong Zhongshu became an official due to old illness.Every time the imperial court had political discussions, several court officials Zhang Tang was sent to the back alleys to ask about his gains and losses.So I wrote the two hundred and thirty-two things in "Spring and Autumn Breaking Prison".Emperor Wen of the Han Dynasty's decree on the removal of corporal punishment refers to that (see below).Emperor Wu of the Han Dynasty also sent Lu Bushu (a disciple of Dong Zhongshu) to rule Huainan Prison.It can be seen that the laws, decrees, and comparisons of the Han Dynasty were mixed with Confucianism and executed a lot.Such Confucianism must be more lenient than Legalism.This is because Legalism emphasizes on extending the power of the state, while Confucianism emphasizes on preserving good social habits.In Zhang Binglin's "Taiyan Wenlu", there is an article "The Law of the Five Dynasties", saying that the "Jin Law" is extremely civilized, but after the Northern Wei Dynasty, the Xianbei Law was used, but it was changed to barbarism.For example, in "Jin Law", the theory of parents killing their children is the same, but after the Northern Wei Dynasty, it has to be alleviated.Another example is that those who kill people in a city on horseback should not be judged as negligent (according to this, those who kill people in horse-drawn carriages, motorcycles, and cities should be judged as murders for reason. Because there are many pedestrians in the city, it is foreseeable by the driver, and it is not special. Be careful, how can it be called a fault? Those who suffer will say: "In this way, you will not be able to drive in the city. The more civilization progresses, the more urgent the situation is, the more precious time is, and people who take into account walking everywhere, how can they do their best? I don’t know that the urgency of the matter is just an excuse. If there are urgent matters, such as military transportation, diplomatic missions, and activities such as chaos suppression, fire fighting, and first aid to diseases, they can be separately enacted as laws. However, today, What percentage of the incidents of injuring passers-by were due to these reasons? It was recorded that between the tenth and twelfth years of the Republic of China, a foreigner in Shanghai once disliked the rickshaw driver for walking slowly and refused to pay the fare after getting off the bus. , went straight forward. The coachman pursued him, but was injured again. The consul sentenced him to imprisonment. Later, he was defended by a lawyer, but instead he was fined. Ask him the reason for the quarrel, but he is not in a hurry I just want to go to a banquet somewhere. There are never people who are galloping in anger and horses. I don’t know if there are one percent of them. The really urgent things are probably done by people walking or carrying heavy loads.) The tribesman killed the chief Officials are the same as ordinary people, and ordinary people cannot be redeemed for their crimes, etc., which are far better than the laws of other dynasties.The father who kills his son should be punished, which is clearly seen in "Baihu Tongyi". We can infer that the theory that parents kill their sons is the same, and its origin may come from Confucianism.Another example is the Legalists, who most advocate subduing and suppressing the powerful.The theory of killing people on horseback in cities is not the same, or it was formulated by the Legalists.However, the improvement of the law has been obtained from many theories of various schools.Although scholars can't help but have class consciousness, after all, most of them plead for the people.In the past, we saw what scholars did and said, and we were not satisfied with it. This is the way of the times.People in modern times sometimes severely criticize the scholars of the past, but forget the prevailing customs at that time. This is too ignorant of the social situation.

After the "Jin Law" was formulated, it has been generally followed in the past dynasties.Song and Qi have no laws.Although Liang and Chen have their own laws, they generally follow the "Jin Law".That is to say, Wei, Zhou, and Qi are also the same, but they are slightly involved in the Xianbei method. "Tang Law" is still in existence, and the style also follows the old view.During the time of the Taizu of the Liao Dynasty, the laws governing Khitan and other barbarians were fixed, while the Han people ruled out laws and regulations.During the reign of Emperor Taizong, the people of Bohai also followed the Han law.In Daozong's time, the laws of the country cannot be differently applied, and those who do not conform to the laws and regulations are kept separately.The so-called laws and regulations are still old in the Tang Dynasty.During the reign of Emperor Xizong of the Jin Dynasty, the "Huangzhizhi" was formulated in accordance with the old Jurchen system and the laws of the Sui, Tang, Liao, and Song Dynasties.Still use the old law.Zhang Zongtai and the law of time, "Golden History" said that it is actually "Tang Law".At the beginning of the Yuan Dynasty, the golden law was used.After the ancestors Ping Song Dynasty, there were so-called "Zhi Yuan Xin Ge", "Da Yuan Tong Zhi", etc., and they were just compilations of new legal examples.The Taizu of the Ming Dynasty established the "Law of the Ming Dynasty", which is also the same as the "Law of the Tang Dynasty". "Law" is based on "Ming Law".Therefore, from the promulgation of the "Jin Law" until the adoption of Western law in the late Qing Dynasty, the actual laws of China did not change much.

The nature of the law, being so old, how can it still apply? (1) Traditionally, the law only provides for more permanent matters.For example, the laws of the early Jin Dynasty say that with regard to military affairs, land farming, wine, etc., there is the right to set up its own laws.Another example is the Law of the Northern Qi Dynasty, and there are also forty volumes of "Xin Ling" and two volumes of "Quan Ling", which are parallel to it.Such differences have existed throughout the ages.In short, the non-permanent part is not included in the law, and the law will naturally have less changes. (2) The law only reveals the outline. (A) more specific and (b) flexible measures are in the order and ratio. "Tang Shu Criminal Law Chronicle" said: "There are four criminal books in the Tang Dynasty: law, order, style, and style. Orders are equal to the number of high and low, and the system of the country is also the system of the country. Forms are often practiced by hundreds of officials. Things. Forms are the laws that they always abide by (Song Shenzong said: "Setting up here to treat others is called style, and making them follow suit is called style." See "Song History·Criminal Law Records"). The politics of every state , must be engaged in these three things. If there are violations, and people who commit evil and enter into crimes, they must be ruled out." Orders, patterns, and formulas are not really punishment books.However, modern new things, as well as the procedures that should be followed by the office, are all included, so it has to be combined with the law.The things contained in the law are probably very old and not suitable for specific applications, but they come from the highest principle, and it is inconvenient to discard them.Therefore, Song Shenzong changed the names of law, order, form and style to Chi, Ling, form and style, and "the law always exists outside the imperial order".This is the practical application, completely substituting the imperial edict for the law.In modern times, the rules are supplemented by examples.In the thirteenth year of Hongzhi Emperor Xiaozong of the Ming Dynasty, the criminal officials said: "Skillful legal officials at home and abroad may use the law to benefit themselves, and the law is not used." So he issued a ministerial book, met with nine ministers, and added criminal regulations over the years. Ninety-seven.Since then, laws and regulations have followed.The Qing Dynasty also repeatedly deleted the criminal regulations.After Qianlong, it was included in the law and named "Laws of the Qing Dynasty".According to the rules, it is compiled according to the completed case, which is the so-called ratio in the previous life.The legal text only gives an outline. In practical application, there must be things that have been handled by professionals.However, there are too many cases to be cited at will, and those with good intentions will think the discrepancies are too large, and those with malicious intentions will be even more unimaginable, so they must be restricted.After examination and approval by the officials, (1) those that are repeated are deleted; (2) those that are usable are kept; (3) those that are useless are discarded;This is the origin of the official rules and regulations. It is not only (1) to eliminate the disadvantages, (2) to enable those who do things to be based on, (3) and (A) new developments in society are constantly emerging; (B) old For some things, the law cannot omit everything; (c) or the legal concept changes, the social situation changes, and the old method is not suitable for today; all must be supplemented.There are new criminal laws to help them, and these problems will not be a problem.Clean-up system: Penal regulations have minor revisions every five years, and major revisions every ten years (belonging to the Ministry of Criminal Affairs, which temporarily set up a library), so that new elements are always injected into the law; old and inapplicable ones are deleted at any time, so as not to accumulate.It is indeed desirable to use practical experience to improve the law.

From the Han Dynasty to the Sui Dynasty, the criminal law underwent a great change.Since the word punishment is extended to a broad sense, its original meaning refers specifically to injuring a person's body and causing irreparable trauma, so it is renamed "corporal punishment".Since the late Zhou Dynasty, there has been a theory of elephant punishment, saying that in ancient times, people who deserved the five punishments did not need to be punished, but they only needed to be killed if they were different.This is based on the "Xiang Xing Xun" in "Yao Dian", which is a Confucian book.I'm afraid it's not the case to use a punishment according to an elephant (see above).But the elephant punishment mentioned by Confucianism did exist in ancient times. "Zhou Guan" has Ming Xing (see Sijiu) and Ming Shackles (see Prisoner), but the name and crime of the person are clearly written to show others. "Lunheng Four Taboos" said: At that time, "below the end of the city, the crown belt is different from the common people." You can't just rely on it.Based on this custom, Confucianism appended the "Book of Books" as an article on punishment, opposing the cruelty of corporal punishment.In the thirteenth year of Emperor Xiaowen of the Han Dynasty, Qi Taicang ordered Chunyu to be guilty and sentenced to punishment.The prison arrest department is Chang'an.Chunyu Gong has no sons, but five daughters.He will be arrested and scolded his daughter, saying: "It is not beneficial to have a son but not a boy." The girl Tiying, hurt herself and wept.He followed his father to Chang'an, and wrote a letter willing to be buried as an official servant to redeem his father's punishment.The book plays, the world feels sorry for it.Then he ordered: "When Gai heard that there was a Yu family, he painted different clothes and uniforms to think that he would kill the people and commit crimes. How can he be punished? There are three types of corporal punishment in today's law, but the rape continues. What is the blame? Husbands are punished to cut off limbs. , Carved into the skin, and lasted for life, how can the punishment be painful and not moral? How can it be called the meaning of the parents of the people? It removes physical punishment, and there is an easy way to do it." So there was a councilor: The tattooed person should use the tongs as a city dan pound.Those who should be punished will be whipped three hundred times.Those who cut off the left toe will receive five hundred lashes.When the right toe is cut off, the market is abandoned.According to the imperial edict, there are three types of corporal punishment in the current law. The "Notes" quoted Meng Kang as saying: "Tattooing, cutting two, cutting the left and right toes into one, and all three." In the first year of Emperor Jing, the imperial edict stated that Emperor Xiaowen eliminated palace punishment.The imperial edict engraves finger tattoos on the skin, cuts off limbs, cuts off fingers and cuts off toes, and uses them as fingering palaces for life.It's just that it has been abolished and has not been replaced by others, so some officials can't discuss it.And history didn't make it clear.It is not surprising that the characters of the ancients have been sparse.In the first year of Emperor Jing's reign, the "Ji" recorded that "the death penalty is allowed to be corrupted", and it was used to replace the death penalty, and its meaning was still lenient.However, the palace punishment resumed from then on until the beginning of the Sui Dynasty."Xunzi" refuted the theory of elephant punishment. "Hanshu·Criminal Law" contains its theory, and there are considerable reasons for it.However, there are actually other reasons for the complexity of punishments and prisons, and torture is not the only way to stop them. "Zhuangzi·Zeyang Pian" said: "Baiju came to Qi, and he saw innocent people. Push and force him. Undo the court clothes and cover him. Call the sky and cry. Said: Zihuzi? Separate first. Said: Don't steal, don't kill. Honor and disgrace, then see the sickness, goods and wealth, and then see the fight. When there is no rest, there is no desire to reach this point, and it is possible. Hidden as a thing but foolish and ignorant, great embarrassment but dare not commit crimes, heavy responsibility but invincible punishment, far away from smearing but never punished. The people's knowledge is exhausted, and they continue with falsehood How false is the sunrise? Is it true that the people are not false? If you are not strong enough, you will be false. It is all about individuals being oppressed by society and unable to be self-sufficient; being educated by society so that they do not know good and evil (how false the sun is, the people are not false), and they can bear very little responsibility.It is really unreasonable to oppress them with severe punishments and severe laws.Regardless of this, "the people are not afraid of death, so how can they be afraid of it" ("Laozi"), which is also useless to the matter.Therefore, "the Mencius made Yang Fu a scholar and asked Zeng Zi about it. Zeng Zi said: "If you lose your way, the people will be scattered for a long time. If you get it, you should mourn and not be happy" ("The Analects of Confucius·Zi Zhang"), of course. Not a complete solution.However, discussing the matter as it stands and exercising the power of the judiciary should be so intentional.Judicial decisions are never without error.Other kinds of losses can always be recovered, but corporal punishment is absolutely impossible, so the ancients regarded it very seriously.After all, this is the intention of a benevolent gentleman.Later, those who opposed the abolition of corporal punishment had their own reasons, but corporal punishment is a cruel thing. No one dared to firmly advocate it, and it has never been able to recover.Among them, I don't know how many people were saved.Emperor Xiaowen and Tiying are truly memorable figures in history.What are the reasons for opposing the abolition of corporal punishment? "Tong Kao" said: "In addition to corporal punishment in Chinese, it is good, and it is replaced by flogging. If the flogging method is too light, there will be no punishment; if the flogging method is too heavy, it will cause death. After that, flogging will be used alone.髠. Reduce the death penalty by one level, that is, stop at the scorpion; enter the scorpion by one level, that is, the death penalty. And the deep and cruel officials, and the heavy duty, so the death penalty is overwhelming. It has been sick since the Wei and Jin Dynasties. I don’t know how to reduce the number of whips To keep them from dying, they wanted to return to corporal punishment to keep them alive, but corporal punishment could not be resumed, so they only used pliers as life punishment. Fu Shengyi, who wanted to live, wounded people or broke limbs, and then cut off their hair. The person who wants to be trapped is compared with death, so the criminal has already been punished and killed, and then his family members are punished. The severity of the inappropriateness should not be overstated. Since the Sui and Tang Dynasties, five punishments have been introduced, namely caning, stick, imprisonment, exile, and death. The five, that is, the so-called whip, pu, liu, and house, even if the sage is revived, they must not be neglected." According to the abolition of corporal punishment, and before the Sui Dynasty enacted the five punishments, the problem in criminal law was that there were too few levels of punishment. It is not fair to use it.Therefore, some experienced people in the judicial circle advocate the restoration of corporal punishment.Those who emphasize theory in reading often oppose it.The restoration of corporal punishment is a cruel thing after all, and no one dares to insist on it, so corporal punishment has not been restored in the end.After the Five Penalties were enacted in the Sui Dynasty, there were many levels of punishment, and there was no need to restore corporal punishment. Since then, no one has mentioned it.It has been more than 750 years since Emperor Wen of Han abolished corporal punishment.The evolution of a system is not easy.

The five punishments in the Sui and Tang Dynasties have their own levels.Among them, the death penalty is divided into two types: beheading and hanging.Except for the owl heads and cracks of the previous generation.Yuan ruled the Central Plains with a foreign race, and the legislation was rough and tyrannical.The death penalty is beheaded but not hanged.Ling Chi was also executed for evil and rebellion.Both the Ming and Qing dynasties followed it.In the Ming Dynasty, the criminal law, the military and the government were discussed together.In addition to the five punishments, there is also the so-called exile.Subdivided into nearby, coastal, remote, miasma, and miasmaThere are lifelong and forever.After the eternal person dies, he seduces his descendants; the descendant and his relatives (see the previous chapter).Ming system: "Two dead and three bad, the same is reduced." For the sake of people's understanding of the law, Taizu collected and compiled articles on the offenses of officials and people, and promulgated them to the world, which is called "Dagao".Those who have the "Dagao" in prison will be reduced in crime.Later, regardless of whether there is any, it will be regarded as yes and reduced.Therefore, those who reduced the death penalty to exile were all reduced by the "Dagao", and exile was tantamount to no use.But there are many soldiers.The Qing Dynasty did not rely on relegation to maintain military status, but still followed the system, which is a stain in the history of modern legislation. The improvement of the criminal law started from the revision of the old laws in the late Qing Dynasty.At that time, the cane was changed to a fine, and work was used instead of apprenticeship.Later, the "New Criminal Law" was formulated, and the main punishment was divided into five types: death penalty (by hanging, carried out in prison), life imprisonment, fixed-term imprisonment, criminal detention, and fine.From punishment to confiscation and deprivation of public rights. The judiciary has been inseparable from the administration since ancient times.This is the so-called "governor of the land" in "Zhou Guan".However, officials belonging to Qiuguan, such as Xiangshi (in charge of the country), Suishi (in charge of the surrounding suburbs), county official (in charge of the field), alchemist (in charge of the capital's family), etc., also take charge of prison litigation.Local officials and autumn officials should have been distinguished from administrative officials and military court judges, as can be seen from the previous text, but later on, the distinction between the two gradually disappeared.欧洲以司法独立为恤刑之法，中国则以（一）缩小下级官吏定罪的权限，如（二）增加审级，为恤刑之法。汉代太守便得专杀，然至近代，则府、厅、州、县，只能决徒以下的罪，流刑必须由按察司亲审，死刑要待御笔勾决了。行政、司法机关既不分，则行政官吏等级的增加，即为司法上审级的增加。而历代于固有的地方官吏以外，又多临时派官清理刑狱。越诉虽有制限，上诉是习惯上得直达皇帝为止的，即所谓叩阍。宋代初命转运使派官提点刑狱，后独立为一司，明朝继之，设按察司，与布政使并立，而监司之官，始有专司刑狱的。然及清代，其上级的督抚，亦都可受理上诉。自此以上，方为京控（刑部、都察院、提督，均可受理）。临时派官复审，明代尤多。其后朝审、秋审，遂沿为定制。清代秋审是由督抚会同两司举行的。决定后由刑部汇奏。再命三法司（见下）复审，然后御笔勾决，死刑乃得执行。在内的则由六部、大理寺、通政司、都察院会审，谓之朝审。此等办法，固得慎重刑狱之意。然审级太多，则事不易决。又路途遥远，加以旷日持久，人证物证，不易调齐，或且至于湮灭，审判仍未必公平，而人民反因狱事拖延受累。所以此等恤刑之法，亦是有利有弊的。 司法虽不独立，然除特设的司法官吏而外，干涉审判之官，亦应以治民之官为限。如此，（一）系统方不紊乱。（二）亦且各种官吏，对于审判，未必内行，令其干涉，不免无益有损。然历代既非司法之官，又非治民之官，而参与审判之事者，亦在所不免。如御史，本系监察之官，不当干涉审判。所以弹劾之事，虽有涉及刑狱的，仍略去告诉人的姓名，谓之风闻。唐代此制始变，且命其参与推讯，至明，遂竟称为三法司之一了。而如通政司、翰林院、詹事府、五军都督等，无不可临时受命，与于会审之列，更属莫名其妙。又司法事务，最忌令军政机关参与。而历代每将维持治安及侦缉罪犯之责，付之军政机关。使其获得人犯之后，仍须交给治民之官，尚不易非理肆虐，而又往往令其自行治理，如汉代的司隶校尉，明代的锦衣卫、东厂等，尤为流毒无穷。 审判之制，贵于速断速决，又必熟悉本地方的民情。所以以州县官专司审制，于事实嫌其不给。而后世的地方官，多非本地人，亦嫌其不悉民情。廉远堂高，官民隔膜，吏役等遂得乘机舞弊。司法事务的黑暗，至于书不胜书。人民遂以入公门为戒。官吏无如吏役何，亦只得劝民息讼。国家对于人民的义务，第一事，便在保障其安全及权利，设官本意，惟此为急。而官吏竟至劝人民不必诉讼，岂非奇谈？古代所谓“地治者”，本皆后世乡吏之类，汉代啬夫，还是有听讼之职的（《汉书·百官公卿表》）。爰延为外黄乡啬夫，民至不知有郡县（《后汉书》本传），其权力之大可知。然治者和被治者，既形成两个阶级，治者专以削被治者为生，则诉讼正是削的好机会，畀乡吏以听讼之权，流弊必至不可究诘。所以至隋世，遂禁止乡官听讼。《日知录·乡亭之职》一条说：“今代县门之前，多有榜曰：诬告加三等，越诉笞五十。此先朝之旧制。今人谓不经县官而上诉司府，谓之越诉，是不然。《太祖实录》：洪武二十七年，命有司择民间高年老人，公正可任事者，理其乡之辞讼。若户婚、田宅、斗殴者，则会里胥决之。事涉重者，始白于官。若不由里老处分，而径诉县官，此之谓越诉也。”则明太祖尝有意恢复乡官听讼之制。然《注》又引宣德七年陕西按察佥事林时之言，谓“洪武中，天下邑里，皆置申明，旌善二亭，民有善恶则书之，以示劝惩。凡户婚、田土、斗殴常事，里老于此剖决。今亭宇多废，善恶不书。小事不由里老，辄赴上司。狱讼之繁，皆由于此”。则其事不久即废。今乡官听讼之制，固不可行。然法院亦难遍设。民国十五年，各国所派的司法调查委员（见下），以通计四百万人乃有一第一审法院，为我国司法状况缺点之一。中国人每笑西洋人的健讼，说我国人无须警察、司法，亦能相安，足见道德优于西人。其实中国人的不愿诉讼，怕也是司法状况的黑暗逼迫而成的，并非美事。但全靠法院平定曲直，确亦非良好现象。不须多设法院，而社会上亦能发扬正义，抑强扶弱，不至如今日之豪暴横行；乡里平亭，权又操于土豪劣绅之手，是为最善。那就不得不有望于风俗的改良了。 古代的法律，本来是属人主义的，中国疆域广大，所包含的民族极多。强要推行同一的法律，势必引起纠纷。所以自古即以“不求变俗”为治（《礼记·曲礼》），统一以后，和外国交通，亦系如此。《唐律》：化外人犯罪，就依其国法治之。必两化外人相犯，不能偏据一国的法律，才依据中国法律治理。这种办法，固然是事实相沿，然决定何者为罪的，根本上实在是习惯。两族的习惯相异，其所认为犯罪之事，即各不相同。“照异族的习惯看起来，虽确有犯罪的行为，然在其本人，则实无犯罪的意思。”在此情形之下，亦自以按其本族法律治理为公平。但此项办法，只能适用于往来稀少之时。到近代世界大通，交涉之事，日益繁密，其势就不能行了。中国初和外国订约时，是不甚了然于另一新局面的来临的。一切交涉，都根据于旧见解以为应付，遂贸然允许了领事裁判权。而司法界情形的黑暗（主要的是司法不独立，监狱的黑暗，滥施刑讯及拘押等），有以生西人的戒心，而为其所藉口，亦是无可讳言的（从事有领事裁判权的国家，如土耳其，有虐待异教徒的事实，我国则无之。若说因习惯的不同，则应彼此皆有）。中外条约中，首先获得领事裁判权的是英国，后来各国相继获得。其条文彼此互异，然因各国条约均有最惠国条款，可以互相援引，所以实际上并无甚异同。有领判权之国，英、美、意、挪威、日本，均在我国设立法院。上海的会审公廨，且进而涉及原被告均为华人的事件。其损害我国的主权，自然无待于言了。然各国亦同蒙其不利（最重要的，如领事不晓法律，各国相互之间，亦须各归其国的领事审判。一件事情，关涉几国人的，即须分别向各国起诉。又上诉相距太远，即在中国设有法院之国亦然，其他更不必论了）。且领事裁判权存在，中国决不能许外国人在内地杂居，外人因此自限制其权利于通商口岸，亦殊不值得。取消领事裁判权之议，亦起于《辛丑条约》。英、美、日三国商约，均有俟我法律及司法制度改良后，撤消领事裁判权的条文。太平洋会议，我国提出撤消领事裁判权案，与会各国，允共同派员，到中国来调查：（一）各国在我国的领事裁判权的现状，（二）我国的法律，（三）司法制度，（四）司法行政情形，再行决定。十五年，各国派员来华调查，草有报告书，仍主从缓。国民政府和意、丹、葡、西四国，订立十九年一月一日放弃领事裁判权的条约。比约则订明另定详细办法。倘详细办法尚未订定，而现有领事裁判权之国，过半数放弃，则比国亦放弃。中国在诸约中，订定（一）十九年一月一日以前，颁布民商法；（二）撤消领事裁判权之后，许外人内地杂居；（三）彼此侨民课税，不得高于他国人，或异于他国人，以为交换条件。然此约订定之后，迄今未能实行。惟墨西哥于十八年十一月，自动宣言放弃（德、奥、俄等国，欧战后即失其领事裁判权）。 撤消领事裁判权，其实是不成问题的，只要我国司法，真能改良，自不怕不能实行。我国的司法改良，在于（一）彻底改良司法界的状况，（二）且推行之及于全国，此即所谓“司法革命”、“司法普及”。既须经费，又须人才，又须行政上的努力，自非易事。自前清末年订定四级三审制（初级、地方、高等三厅及大理院。初审起于初级厅的，上诉终于高等厅，起于地方厅的，终于大理院）至民国二十二年，改为三级三审（地方法院、高等法院、最高法院）。前此司法多由县知事兼理，虽订有种种章程，究竟行政司法，分划不清。二十四年起，司法部已令全国各地，遍设法院。这都是比较合理的。真能推行尽利，我国的司法自可焕然改观了。