Who is blocking the solution of the big fresh criminal law? -Zhang Zongxiang's memory identification and expansion.
Author Chen Xinyu
introduce
20 1 1 is the centenary of the Revolution of 1911 and the centenary of the promulgation of the Qing Criminal Law. This revolution declared a leap from monarchy to democracy, but it did not split the relationship between laws. On April 30th, the first year of the Republic of China (1912), the Provisional Senate in Beijing named it "Provisional New Criminal Law" after deleting the clauses in the Criminal Law of the Qing Dynasty that conflicted with the national system and the Provisional Constitution for safeguarding the ancient ethics of ethics, which became the most important in the early years of the Republic of China. The latest achievements of law revision in the late Qing Dynasty can be tested by the society in the early Republic of China. While the Great Revolution quickly solved the problem of the continuation of the legal system, it also annihilated the potential controversy of the Great Fresh Criminal Law. The passage of time buried many colorful stories about the revision of the law that year. Today, it is easy to simplify complex historical issues under the control of some inertial thinking in evolutionary history. The purpose of this paper is to try to restore and reflect on an important stage of the formulation of the new criminal law in those years-the resolution of the senior Council. {2} The starting point is a "missing person in legal history" {3}-Zhang Zongxiang.
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As a historical figure, Zhang Zongxiang has always been remembered as a traitor in the May 4th Movement. As a legal person, Zhang Zongxiang seems to be little known. In the late Qing Dynasty, this "familiar stranger" studied in Japan and graduated from the Law Department of Imperial University in Tokyo. After returning to China, his work was closely related to the law, whether he was a criminal law teacher in Jingshi University, or in the law repair hall, the inner city governor's general office, the constitution compilation hall and other departments. Zhang's "Da Qing Xin Criminal Law", which triggered a big debate on etiquette and law in Qing Dynasty, received enthusiastic response, and it can be seen in bill drafting, forum debate and secret room planning. It can be described as an important participant and witness.
In view of Zhang Zongxiang's special status, his unforgettable article "The Promulgation of the New Criminal Law" {4} naturally becomes an important material to understand the history of this code compilation, among which the resolution made by the High Council is the most striking. There are two reasons, one is the procedural level, and the other is the controversial level.
Procedurally speaking, the resolution of the Senior Advisory Committee is a new procedure for formulating the code. In the legal reform of Qing dynasty, the procedure of making code changed with the change of system. In the early stage, it was compiled by the Law Revision Museum, endorsed by the Constitution Compilation Museum, and then consulted the Constitution Compilation Museum, selected and passed, and requested promulgation. Later, the Senior Advisory Committee was established, and after the system was perfected, it was no longer distributed to ministries and provinces for discussion, but sent to the Senior Advisory Committee for resolution, and then transferred to the Constitutional Compilation Museum for further examination and approval. The chairman and vice-chairman of the Senior Advisory Council, together with the Minister of Military Affairs, will rule on the petition. (5) If the military minister disagrees with the resolution of the Senior Advisory Committee, he may state the reasons and submit them to the Senior Advisory Committee for reconsideration. When the two sides can't reach an agreement, they will go on stage separately and be ruled by the emperor. {6}
The compilation of the new criminal law coincided with the establishment of the Senior Advisory Committee in September of the second year of Xuantong, so it not only experienced the endorsement of the central and local governments, but also required the resolution of the Senior Advisory Committee, which will be the basis for the upper and lower houses in the future. Although its final promulgation still needs imperial edict, under the constitutional background, the level of senior advisory Committee is undoubtedly a democratic highlight different from the old system.
In terms of debate, the debate of the Senior Advisory Council is the final decisive battle between the old and new factions. From the thirty-third year of Guangxu (1907), Shen Jiaben and others hit the first case of the new criminal law, which triggered a "debate on etiquette and law". After a long tug-of-war, the old and new factions finally ushered in the second year of Xuan Tong (19 15438+0965438+).
Zhang Zongxiang emphasized the special stage of the resolution of the Senior Advisory Committee, to the effect that in the Senior Advisory Committee, Lao Naixuan and other old schools knew that the new school occupied the majority of the members and they would never win the debate, so they adopted the passive boycott method. Every time this case was put on the agenda, they moved to discuss other cases first. Because the new criminal law is very troublesome, ordinary members often agree. When the meeting of the Senior Advisory Council ended, the new criminal law was not even discussed. Through his efforts with Shen Jiaben, he persuaded Pulun, chairman of the High Commission, to extend the session by 10 days in an attempt to discuss the new criminal law. However, opponents still use political issues to put forward an urgent motion to delay it, so that the deadline is approaching and the new criminal law has not been discussed. Facing the crisis, on the last day of the meeting of the Senior Advisory Council, Zhang Zongxiang spoke as a member of the government. With his encouragement, the new criminal law was finally put into discussion. The meeting will be held at two o'clock in the afternoon and the general rules will be discussed at seven o'clock in the evening. At 9 o'clock in the evening, the new faction continued to meet according to the previous secret discussion, which made the discussion venue strictly sealed, preventing the old faction from leaving and avoiding the shortage of people. At the same time, Lian Heng United for Mongolian and Tibetan representatives, and finally at 1 1 in the evening, all the resolutions of the new criminal law were completed through sub-rules. {7}
Zhang's description is vivid, and the deliberation process is intrigued and undercurrent, which is very dramatic, but good "stories" are not necessarily historical facts. Contemporary readers should not take it as research "material" and believe it. An important code containing more than 400 articles was discussed in just seven hours a day. No matter how to omit the program in the process, it is almost a joke. In fact, as long as we compare the "meeting minutes" {8} of that year, we can prove that it is false, and that is the "factual record". However, it conveys an important message in line with the general imagination of "facts": "Old school obstructs the solution of the new criminal law", which requires certain textual research and identification, and the interpretation of the meaning based on clarifying the facts is also thought-provoking.
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Question 1: Why was the new Criminal Law adopted by the High Advisory Council?
1 1 month 1 day, Xuan Tong (19 10 12), the 23rd meeting of the first regular session of the Senior Advisory Committee discussed the proposal of the new criminal law. After being explained by the government Commissioner and questioned by members, it is submitted to the Code Unit of the Senior Advisory Committee for review. {9} After the audit of the Standardization Unit was completed, Wang Rongbao, deputy head of the Standardization Unit, made a revised report at the 37th meeting in Xuan Tong (191.1.06) on February 6th, and submitted it to the Senior Advisory Committee for re-reading. {10} At that time, according to the constitutional plan, the new criminal law was scheduled to be promulgated in the second year of Xuantong, and the first regular meeting of the Senior Advisory Committee would be closed on December 11th of Xuantong (191kloc-0/year).
The new criminal law was discussed at the 23rd meeting, and it was not read out again until the 37th meeting. According to the minutes of the meeting of the Senior Advisory Committee, it can be found that at the 29th and 30th meetings, the second item on the agenda was a report on the new criminal law, but the result was not implemented. What happened?
The answer is that the agenda has changed. At the 29th meeting, Committee member Yu Banghua advocated discussing the third item on the agenda, "Proposal for nationwide smoking ban" in advance, but Wang Rongbao's opposition was invalid. After the discussion, Mr. Yu suggested discussing the fourth item, "It is suggested that Zhejiang Railway Company apply the commercial law". Wang Rongbao thinks that we should first discuss the first "pilot total budget for Xuantong three-year-old children". Yi Zongkui supported Wang Rongbao, while Shao Xi and Wu Ciling thought it could be changed. Xu suggested discussing the fourth to sixth items of the original topic first, which was endorsed by most members. {1 1} At the 30th meeting, Member Li Wenxi proposed to discuss the third topic first, "Proposal on Chen's Request for Refund of Company Funds", which was passed. { 12}
So, is changing the agenda really what Zhang Zongxiang calls an old-fashioned delaying tactic? I don't think so.
First of all, we should use a relatively objective standard to identify Zhang's so-called new and old schools (that is, "legalists" and "ethicists"). It must be pointed out that in the rapidly changing social time and space, the main characteristics of modern characters are "change" and even "fickle". New ideas and ideas emerge one after another, and yesterday's new may be today's old; In order not to fall behind, between initiative and passivity, it is inevitable to "use today's me against yesterday's me." So what's new in modern times? What is old? The boundary is not clear, it is in a rheological state and needs specific analysis.
Under the background of Zhang Zongxiang, I think the voting tendency of "whether a widowed woman commits rape", which is the most controversial in the new criminal law debate, can be used as a screening criterion. According to the ancient family-based criminal law of China, it is a crime to have sexual relations with women or widows voluntarily, which is an insult and a disturbance of public order. Therefore, the ancient code stipulated that "whoever commits adultery will be punished with a stick of 80" {13}, but according to the modern western personal standard criminal law, this kind of behavior is the embodiment of personal freedom, and the state should not interfere. It is really shocking to advocate decriminalization of rape without husband from the social culture at that time. From the voting tendency, we can roughly see the old and new positions at that time. At that time, the new school and its supporters held blue votes and advocated decriminalization, while the old school and its supporters held white votes and advocated criminalization, so there was a dispute between blue and white votes. Interestingly, the turning point of uniting the Blue and White Votes with Lian Heng also contributed to the emergence of political parties in the Qing Dynasty. Among them, some white votes formed the "Constitutional Maintenance Meeting" and some blue votes formed the "Political Science (Public) Meeting". {14} can be described as "unintentional mistake". Fortunately, the names of members of parliament should be written on the coupons at that time, and the list {15} was reserved for sentencing today.
According to the list of blue and white votes at that time, among the Members who advocated and supported the change of the agenda, Yu Banghua and Xu were white votes, while Yu, Li Wenxi and Wu Ciling were blue votes {16}. It can be said that most of them are representatives of the new school or supporters of the new school. Everything is decided in advance and basically discussed on the spot. If it is said that the old school or its supporters blocked it, then the new school or its supporters also moved the idea of changing the agenda. How to explain it? Therefore, Zhang's statement is obviously not objective.
Secondly, after discussing the third item advocated by Li Wenxi at the 30th meeting, from 30th to 36th, the original first general budget was still decided according to the scheduled agenda. This case is related to the national economy and people's livelihood, so it naturally takes time. Therefore, Wang Rongbao's delay in making a report on the new criminal law is the result of delay, not deliberate delay.
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Question 2: In this case, how was the new criminal law passed?
At the 39th meeting of Xuantong's second year (191118), the issue of "no adulterer" was put to the vote, and the old guard won a total victory. First, determine whether there is a criminal act. As a result, 77 votes were white and 42 votes were blue, and they were found guilty. Secondly, the position of the article. By standing up, 6 1 voted for the official text and 49 voted for the provisional constitution. According to the results of two votes, rape without a husband is not only guilty, but also written into the text of the Personal Code, not left in the Transitional Interim Constitution. {17} With this great victory, from a common sense, the old school represented by Lao Naixuan naturally hopes that "it is advisable to chase the brave into the enemy" and continue the discussion while the iron is hot. However, the angry new faction also had a solution, and they agreed to strike the next day. Important figures of the new school recorded important information in their diaries: Lu told not to go to the senior advisory Committee. {18} Lu, another famous "traitor" during the May 4th Movement, was a scholar at this time, a scholar in the State Council. He, Cao Rulin and Cao Rulin were all active figures in the New Deal in the late Qing Dynasty, and were nicknamed "Four donkey kong" at that time {19}, all important figures of the new school.
The absence of the new faction led to the shortage of senior advisers, and the meeting was forced to be postponed until 4 pm that day. Only enough people 106 were gathered, reaching two-thirds of the number needed for the meeting, and the meeting was held. However, Wang Rongbao, as the deputy director of the Code Unit, did not come, and there was no suitable candidate to explain the doubts of the new criminal law. He had to discuss other schedules first and wait for Wang, but it never came. {20} The Senior Advisory Committee barely finished discussing a clause of the new criminal law (Article 289), and the number was insufficient, so it had to be hastily dissolved. {22}
On December 10th, the second year of Xuantong (19111), Wang Rongbao mentioned in his diary that, initiated by Lu, his brother Zhang Zongyuan and others, the blue ticket holders held a meeting at the Finance School from 9: 00 to 12 that day. The second is the third reading of the general principles of criminal law. {23}
This day is the last day of deliberation by the Senior Advisory Committee (closing the next day). There were 17 items on the agenda that day, and the new criminal law bill was the first item. Zhang Zongyuan advocated discussing other matters before discussing the new criminal law, which was agreed by most people. That evening, after the discussion, we will discuss the new criminal law. Mr. Ji, a member of the blue ticket, suggested: "The general rules have been discussed, and everyone has no objection. If the general rules are passed on the third reading, they will be played immediately, as if they were spiritual to the senior advisory Committee. " Yu Zong echoed. Senator Roger advocated omitting the Third Reading and adopting the general rules. On behalf of the government, Zhang Zongxiang expressed the hope that the detailed rules could be discussed in detail and passed overnight. Zhang Zongyuan thought that it was difficult to pass all the general rules and sub-rules, and proposed that most members agreed to omit the third reading to pass the general rules. On that day, 65,438+029 members attended the parliament. According to the statistics of the clerk, only more than 80 members were present at that time, and 69 people were in favor of standing up. More than half of the 65,438+029 members passed by a majority vote. It's already 10: 30 at night. {24}
In the last two days, the situation has been turbulent, which fully proves the strategies of new figures such as Wang Rongbao and Zhang Zongyuan. In parliamentary politics, faced with the situation that the resolution of the new criminal law is not conducive to themselves, they use technical means and the urgency of time. First, it was cleverly delayed, then "Wang Gu talked about him", and then at the last minute, "World War I was over". When the members of the Council are exhausted, they use their psychology of needing political achievements to win the majority and finally achieve their goal.
It must be pointed out that in the Senior Advisory Committee, the new criminal law actually only adopted the general principles, but did not fully discuss the specific provisions, not all as Zhang Zongxiang said. According to the rules of procedure of the Senior Advisory Council, if no decision is made at the end of the meeting, the meeting will be adjourned, but it can be raised again at the next meeting. {25}
As a result, in order to meet the requirements of the constitutional period, Xuantong promulgated the "Great Fresh Criminal Law" by decree on February 25th, the second year of Xuantong (19125th). It was played by the Senior Advisory Committee and the Constitution Editorial Room, which played the sub-rules and the provisional constitution respectively, and finally. {26} In this case, the most hotly discussed issue of adultery without husband only appeared in the interim constitution, but not in the text of the code.
From the perspective of constitutional interpretation, although the Outline of the King James Constitution in August of Guangxu's thirty-fourth year (1908) stipulated that the emperor had the right to "make laws by king James", and the imperial power provided a legal basis for its promulgation in the imperial era, the review power of military ministers, which was the basis of the upper and lower houses, was skipped, and there were serious procedural defects in the new criminal law. In fact, there is a constitutional dispute about its promulgation. Although the imperial edict of the Qing court mentioned that next year's meeting of the Senior Advisory Committee could propose amendments, it had been reread before. What is "correction"? If it refers to the revision of the third reading, according to the rules of procedure of the Senior Advisory Committee, the third reading is only a textual revision, {27} which does not involve substantive content; If you are going to start all over again and make another resolution, is it too ridiculous to take the voting results of the senior advisory Committee seriously? Moreover, according to Article 19 of the September Constitution in the third year of Xuantong (19 1 1), the virtual monarch * * * and the embryo of the emperor did not have the legislative power to unify the imperial power in the previous royal constitutional outline. What if the original proposal was still maintained at that time?
Fortunately, Wuchang Uprising was shot, and the Revolution of 1911 solved the potential dispute of the criminal legal system during the imperial period.
It can be seen from this incident that relying on the power of the "executive organ" of imperial power and the minister of military affairs, the senior advisory Committee of the "legislature" was ignored. It should also be pointed out that in Wang Rongbao's diary, we can even see two past events in which Zhang Zongxiang tried to bypass the resolution of the new criminal law at that time, and after he had to put it into practice, he tried to promulgate the original case of the new criminal law, but did not play with the parliament. {28} If Wang's record is true, it seems that we can't just say "nothing is lost in virtue, no matter what the details are", because the new party has a pure heart in the new criminal law. This kind of behavior is not a trick, but a deception, not obeying the rules of the game. It can be said that at the beginning of the modernization of China's legal system, the dangerous foreshadowing of contempt for procedures was laid.
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Question 3: What is the truth behind the decision of the Senior Advisory Council on the new criminal law?
In addition to the most extreme die-hards, the political reform in the late Qing Dynasty, in fact, both the new school and the old school had the basic knowledge of "imitating Western law". In the twenty-seventh year of Guangxu (190 1), Zhang Zhidong, an early leader of the old school, put forward the third compromise in his famous "Three Folds of Social Reform in Chu Jiang" and put forward "Eleven Articles of Western Law", including "Mining Law, Railway Law, Commercial Law and Criminal Law of Negotiation". {29} It can be seen that the law at that time was already old-school, and the late leader Lao Naixuan even admitted that only 3% or 4% of the provisions in the new criminal law disagreed, but more than 90% agreed. {30} There are more than 400 new criminal laws, and the number of amendments to the new criminal law proposed by Lao Naixuan is 13, which proves that what he said is true.
From the perspective of comparative legal history, it seems that there are two schools of argument in modern Japanese civil code: the theory of suspension and the theory of extension. In fact, comparing the nine reasons of the former with the ten reasons of the latter, the two sides are quite similar in "intentional ethics" such as ethics, the implementation of the constitution, and the maintenance and guarantee of the social/national economy. In the end, the formulation of the civil code is that the two factions join hands rather than a monopoly. During the debate of German Civil Code in {32}19th century, there was also a view that savigny only converted to "national spirit" verbally, but used it as a weapon to argue with Taibao and attack his opponent, and its essence was a "negative natural law". {33} It can be seen that under the background of legal modernization, "different paths" still have to "return to the same place".
In the debate on specific issues of the new criminal law, both sides should say that they have their own winners and losers. If the old guard has won on the issue of no husband and rape, then on another acute conflict issue, "Do future generations have the right to defend their elders properly?" Lao Naixuan denied this right and advocated that it should be moved from the Provisional Constitution to the text of the code, but it was defeated. {34} Therefore, in my humble opinion, delaying the resolution should be a temporary normal reaction made by one faction after the other faction scored on a certain issue, and its purpose may be to reverse the trend by resorting to public opinion and exerting political skills to achieve favorable results. At least the current historical data show that after the defeat of the problem of "no husband and rape", it is actually the new school rather than the old school that is destroying the re-reading, and of course it is also accelerating the solution of the new criminal law through special skills. However, we don't need to "overcorrect" and think that the old school is a pure blank sheet of paper. Lao Naixuan claims that children and grandchildren have no right to defend their elders properly, and there is a big deviation between the proposal and the final votes. At that time, some Members said that "it is ridiculous to vote in the forum now. There are more than 30 people in favor of the proposal, so they voted for it. ) Only twenty people "{35}. It can be seen that codification is not only a legal cause, but also a political cause. In this process, the performance of not being stingy is that both sides are horse hanging phoenix arc and 500 steps, which can be said to be uncompromising.
To be sure, the new school is under great pressure in the process of compiling the new criminal law. Its leader, Shen Jiaben, accidentally fell down and got injured at the closing ceremony of the Senior Advisory Committee, so he had a nosebleed and could not take a group photo. {36} It can be considered as the result of long-term high pressure, old age but hands-on, fatigue and trance. When we have a warm respect for the achievements of the new school and a sympathetic understanding of their experiences, we should also see that Zhang Zongxiang's memories are too one-sided except for obvious details mistakes, and may even contain some falsification elements. In terms of time, this article was written in the 1920s and 1930s {37} or in his later years. Psychologically, at this time, he was removed from his post because of the May 4th Movement, and he was already far away from the power center. Maybe he is "reminiscing about the past eventful years". In his writing, he couldn't help exaggerating his achievements, and even "lost" more important information intentionally or unintentionally, which made the complexity of history unable to be fully presented. We need to be alert to possible defects in these recalled materials {38}.
Compared with Shen Jiaben, Wang Rongbao and others, Zhang Zongxiang is undoubtedly the most radical representative of the new school. Paradoxically, during Yuan's reign in the fourth year of the Republic of China (19 15), the revised draft of the Criminal Law formulated by him, Dong Kang and others put the crime of adultery that he explicitly opposed in the late Qing Dynasty into the text of the code. In the final draft, it was only an understatement. "The original cases of women raping their husbands are not listed in foreign codes. Since the State Council in the Qing Dynasty, it has been controversial for a long time, and it is enough to hate public opinion. " {39} At this time, Zhang Zongxiang was the Chief Justice and Chairman of the Codification Committee of the Republic of China, Dong Kang was the President of Dali University and the Vice Chairman of the Codification Committee, and Wang Youling was the Vice Chairman of the Codification Committee of the Senate. These new figures in the legal reform of the Qing Dynasty all became real-power legal and political cadres in the Republic of China, but their thoughts collectively regressed.
Although codification is by no means a "one-man battle", in the Supplementary Provisions of the Provisional New Criminal Law promulgated in the third year of the Republic of China (19 14), the crime of adultery without a husband has "returned" {40}, but the regulations are still outside the code, but this draft is ready to enter the classroom and rank among the formal codes. Zhang Zongxiang, as the leader of the draft revised criminal law, can't do without this arrangement in any case. This is a profound irony {4 1} for Zhang, who was worried a few years ago that "the senior members of the advisory group are still shallow in legal knowledge and the discussion may cause damage". His big turning point can't help but make people sigh "frivolous and conservative"! Perhaps "destruction" and "construction" are originally the dual missions of modern legal persons, but only one of them is highlighted in different time and space situations!
Yusi
The truth of the matter is often in the middle. The Qing Dynasty and the Republic of China, radical and conservative, new and old, seem to be very different, but the essence may be very small!
Although the cheap punishment of procedural issues can distinguish the relationship between them and substantive issues, its essence is still the element of the rule of law, that is, whether to abide by established rules. China's system design seems to have been practiced from the very beginning, expecting "people" to exert their subjective initiative and break the inconvenience of the system. From ancient times to the present, it seems that there is a hidden line between monarchs, Confucian officials, elites who master western learning and control public opinion. What is cause and effect, system? Is it rational? Is it due to historical inertia?
If the Wuchang Uprising brought about the institutional revolution and the big fresh criminal law brought about the identity ethics revolution, can the revolution certainly bring about the real enlightenment?
In the process of modernization of legal system, the enlightenment significance of "legal education" will be greatly reduced by using some anti-rule means to construct modern legal system. When the inevitable gap between law and society becomes increasingly prominent, the enlightenment with congenital defects cannot save the reality that needs to be solved urgently, and the result is that it has to turn back between ideal and reality. This bipolar phenomenon is one end of China's legal modernization that needs profound reflection.