The difference between the legal system of the Qing Dynasty and the legal system of the Republic of China.
In fact, the legal system of the Republic of China is a continuation of the legal system in the late Qing Dynasty to a certain extent. Its civil law and criminal law are laws promulgated in the late Qing Dynasty, and the legal system is also a six-law system in the late Qing Dynasty.
If there is any difference, it is the difference between the national system and the political system. In the late Qing Dynasty, the cabinet system was constitutional monarchy, and in the Republic of China, the cabinet system was preceded by the presidential system.
Why has the legal system changed from an autocratic amulet to a patron saint of safeguarding freedom and promoting human rights?
Modern legal system is based on classical natural law, and its theoretical basis is "natural human rights" and "social contract". Its purpose is to oppose theocracy with human rights, to oppose "divine right of monarchy" with "natural human rights", to oppose centralization with decentralization and to oppose autocracy with democracy. Under absolutism, the law exists to safeguard theocracy and monarchical power, and stipulates that theocracy and monarchical power are sacred and inviolable. In order to oppose modern absolutism and feudalism, a modern legal system with inviolable human rights was put forward.
How to advance in the direction of developing modern human rights legal system?
First of all, we need enlightenment, and then popularize civic awareness in the whole society. Then carry out bottom-up reform, establish constitutional authority, and then make the government responsible to the people and be supervised by the people in mechanism.
What is the significance of linking the rule of law with human rights?
Linking the legal system with human rights constitutes the theoretical basis of classical natural law, a theoretical weapon against feudal autocracy, an important role in opposing autocracy and feudalism, and a theoretical source of legal system in modern society. All modern legal systems are based on this theoretical basis.
Introduce several reference materials:
Legal history of qing dynasty. Author: editor Zhang; Press: Zhonghua Book Company
A brief history of the legal system of the Republic of China; Author: Zhang Guofu; Publisher: Peking University.
In the third quarter, the Qing dynasty legal system (on)
Teaching purposes and requirements: to understand the general situation and legal content of legislative activities in the Qing Dynasty, and to master the laws and judicial system in the Qing Dynasty.
☆ First, the main code
(1) Laws of the Qing Dynasty
(2) Codes of the Five Dynasties in Qing Dynasty
△ two. Characteristics of legal system
Severe punishment
(B) the legal system to protect Manchu privileges
(C) heavy law to curb the factors of capitalist economic development
Three. judicial system
(1) Judiciary
(2) Litigation system
(3) Trial
1. Autumn Review
2. Court hearings
3. Hot test
Section 1 Legal System of Qing (Lower), Nanjing Provisional Government and Beiyang Government
Teaching purposes and requirements: to understand the background, main contents and significance of the Qing Dynasty Amendment Law, and to master the legislative overview of Nanjing Provisional Government and Beiyang Government and the establishment of modern rule of law.
☆ First, the reasons and contents of amending the law in the late Qing Dynasty
(1) Shen Jiaben
(B) the decline of China's ancient legal system (rule by man)
△ II. Main contents of amending the law
(1) constitutional document
1. Outline of the Constitution of King James
2. Nineteen creeds
(2) The establishment of continental law tradition and other legislative achievements.
1. Establishment of continental law tradition
2. Other major achievements of law revision.
☆ Third, Sun Yat-sen's legislative thought and the establishment of modern rule of law.
(A) Sun Yat-sen's legislative thoughts
(B) the establishment of a modern legal system
(3) The Provisional Constitution of the Republic of China
Fourthly, the legislation and judicature of Beiyang government.
(1) Legislation
(2) Justice
Section 2 Legal System of the Republic of China
Teaching purpose and requirements: to understand the legislative principles of the legal system of the Republic of China and master the six laws.
I. Legislative principles
Second, the establishment and improvement of the six laws system.
☆ Three. Complete collection of six laws
"Preparatory Constitutionalism" in the Late Qing Dynasty
(The Outline of the King James Constitution-1908 was promulgated in August, the first constitutional document in China's modern history. It is divided into two parts: subject, sovereign power and appendix, rights and obligations of subject. Article 14 of the first part stipulates the absolute power of the monarch in legislation, administration, justice, unified army, etc., safeguarding the dignity of the emperor, safeguarding imperial power, restricting the power of parliament and so on. The second part stipulates the obligations of the subject and imposes various restrictions. Its characteristics are: the emperor has exclusive power, but the people have no right. Its essence is: the feudal monarchy was put on the cloak of the constitution, and the absolute power of the monarch was confirmed in the form of law, which reflected the will and desire of the Manchu nobles to maintain autocratic rule.
Article 19 creed-the full name of "Article 19, the main creed of the Constitution". It is another constitutional document thrown by the Qing government after the outbreak of Wuchang Uprising in the Revolution of 1911. Due to the storm of Wuchang Revolution, the Special Administrative Court was ordered to draft the Constitution quickly, which took only three days to complete and was released in 19 1 1 year 1 1 month. Formally, it was forced to reduce the power of the emperor and relatively expand the power of parliament and prime minister, but it still emphasized the supremacy of imperial power and did not mention civil rights, which exposed its hypocrisy. So it failed to save the defeat of the Qing dynasty.
Advisory Council-a local advisory body established by the Qing government during the preparatory constitutional period.
Senior consultant-the central advisory body established by the Qing government in the period of preparing for constitutionalism. )
The main contents of amending laws in the late Qing Dynasty
("Qing current criminal law"
The new criminal law-191165438+1was promulgated on October 25th, which is the first special criminal code in modern sense in Chinese history.
Draft Commercial Law of Qing Dynasty
Draft civil law of Qing dynasty
Procedural law and court preparation law)
Changes of judicial system in late Qing Dynasty
(four-level three-trial system)
consular jurisdiction
Watch the trial
Mixed court)
The Provisional Constitution of the Republic of China-191March 2 1 1 is the first bourgeois constitutional document in the history of China.
The Tiantan Constitution, also known as the Constitution of the Republic of China,1913 1 0/0/0/3/01,was the first draft constitution during the Beiyang government.
The Constitution of Yuan Zhen, also known as the Constitution of the Republic of China, was promulgated on May 19 1 day, 2004, which marked the complete establishment of warlord autocracy.
The Constitution of Bribery Election, also known as the Constitution of the Republic of China in China, was promulgated by the Beiyang government in June 5438 +0923+654381October 65438 +00, which was the first officially promulgated constitution in the modern history of China.
Constitution of the Republic of China (1947)- Nanjing National Government, 1947, 1 year 1 month,1year, February 25th.
Late Qing dynasty The late Qing Dynasty refers to a special historical period from the Opium War in 1840 to the founding of the Republic of China in 19 12 and the demise of the Qing Dynasty in 1. After 1840, due to the invasion of western powers, China society has undergone drastic changes, from a sovereign and independent feudal country to a semi-feudal and semi-colonial society. Under this special social background, China has also begun the transformation from ancient legal system and legal culture to modern legal civilization. Therefore, the change of the legal system in the late Qing Dynasty occupies an important position in the history of China's legal development. The research focus of this period includes the preparation of constitutionalism and constitutional documents, the revision of departmental laws in the late Qing Dynasty and its main achievements, the characteristics and historical significance of the revision of laws in the late Qing Dynasty, the reform of judicial system in the late Qing Dynasty, the establishment of foreign consular jurisdiction system in China and its consequences.
During the Republic of China. From191265438+10/Sun Yat-sen announced the establishment of the Nanjing Provisional Government of the Republic of China in Nanjing to 1949 when the Kuomintang ruling group withdrew from the mainland, it was the Republic of China in China's modern history. During this period, there were successively Nanjing Provisional Government, Beiyang Government and Kuomintang Nanjing National Government. In the special social environment at the beginning of the 20th century, China's modern legal system began to take a difficult step. The Provisional Constitution of the Republic of China of Nanjing Provisional Government, the constitutional activities and documents of Beiyang Government, the six-law system of Nanjing National Government, the formulation of major codes of Nanjing National Government, such as constitution, civil law, criminal law and procedural law, and the judicial system of Kuomintang regime are the focus of review in this period.
The legal system of the Qing Dynasty experienced the transformation from customary law to written law, and the evolution from simple to complex. After entering the customs, it experienced the evolution from feudal legal system to modern legal system.
Off-site time
Nurhachi appreciated Zhuge Liang's experience in governing Shu and attached importance to governing the country according to law. In the 15th year of Wanli in the Ming Dynasty (1587), legislation was enacted on June 24th, which made it a national event and prohibited insurrection, theft and fraud. However, the legal form is relatively rough, and most of them are some "bans" orally announced by Nurhachi, or the rules orally agreed by Baylor, or the "documents" promulgated by the Eight Kings. Nuerhachi's oral "ban" is an unwritten law based on the traditional habits of Jurchen. Forty-four years later (16 16), after the establishment of the Jin regime, Nurhachi had a deeper understanding of the importance of governing the country according to law, and forced the Eight Banners generals and even the Eight Banners owners to strictly abide by the statutes. At this time, there are many rules but not comprehensive. "The content involves the organization and system of the Eight Banners, military orders, hunting orders and lawsuits." Written laws began to exist, such as the six-year mandate of heaven (162 1) and "no single order".
Before the "national politics", the Nurhachi regime did not have any judicial institutions. Whoever committed a crime at that time was dealt with directly in accordance with the provisions of the military criminal law. After the establishment of People's Republic of China (PRC) in the 43rd year of Wanli, Nurhachi set up five ministers, who were in charge of politics and tried cases, and had ten ministers under him. The judiciary has two levels: the first level is Lu Niu, and the second level is Baylor's ministers. Small cases are handled by Lu Niu. Minister Baylor, the king, five ministers who were interrogated, pending cases and cases designated Innuerhachi. In a complicated case, ten people were interrogated in Zalguzi first, and then five ministers dysprosium (jū) asked questions. And report to baylor. After everyone agrees, explain the results of the three reviews to Nurhachi. Afraid of injustice, let the litigants kneel in front of Nurhachi and interrogate them in detail until the right and wrong are clarified. If Nurhachi's relatives break the law, Nurhachi will personally try it as Khan and the householder.
Minister Baylor is not allowed to drink, eat meat, ask for bribes or accept bribes when trying cases.
During the Nurhachi period, the punishment was cruel. The death penalty includes beheading, burning, branding, beheading after "irritating ears, face and waist", killing and slaughter, and corporal punishment includes hitting cheeks, piercing ears and flogging.
The core of Huang taiji's legal system construction is centralization, development of agricultural production and seizure of Ming regime. Formulated the legislative route of "thinking about money", expanded the scope of legislation, diversified legal forms, written law became the main way, and the legal system construction entered the feudal legal system stage.
The law is much more perfect than Nurhachi. For example, Huang Taiji made laws in the following aspects: First, administration. Chongde Hui Dian is an important collection of laws from the 11th year of Destiny to the first year of Chongde, including the main laws of rites, punishments and households. It has also made laws for the royal family and established a system of conferring titles on the royal family. Second, adjust social relations. Tiancong promulgated the "Departure Regulations" in July of five years, precisely to adjust the relationship between slaves and slave owners. Third, economic relations. It is stipulated that land should be distributed according to population, the children of nobles and ministers are prohibited from selling and ravaging in the countryside, and food is allowed to be bought and sold freely. Fourth, criminal. The "ten evils" in the criminal law of the Han Dynasty (rebellion, rebellion, immorality, disrespect, unfilial, discord, injustice and civil strife are the ten evils) were introduced, and crime was listed as the first political crime of the ten evils. Political crimes that are not within the scope of the "ten evils" include desertion, escaping from slave owners, hiding and escaping, and collaborating with the enemy. General criminal offences include theft, adultery, deception, murder, gambling, left-wing misleading, arms trafficking and so on. Economic crimes include the crime of tax evasion, the crime of hiding able-bodied men, the crime of bribery, the crime of hiding prisoners, the crime of planting and the crime of smoking. Penalties include beheading, detention, flogging, ear piercing, flogging, confinement, exile, family members, fines, dismissal and dismissal. Fourth, the ceremony. In order to centralize power, Huang Taiji also held a ceremony to show his respect for the throne. Before he ascended the throne, the princes and ministers and the inner palace were required to abide by all kinds of etiquette learned from the Han Dynasty. Fifth, military law. In order to effectively fight against the Ming Dynasty, Huang Taiji promulgated military laws many times. Sixth, marriage. In the sixth year, Tiancong also issued a decree prohibiting incest marriage and prohibiting women under the age of twelve from getting married.
In legal form, there are the same imperial edicts as Nurhachi, such as "No hiding of able-bodied men" and "No illegal orders of Baylor"; There are provisions in the written law, such as the main provisions of the separation of internal and external cattle records, and the punishment case of longitudinal livestock entering the field. In the first year of Chongde (1636), the first administrative code of the Qing Dynasty, Chongde Huidian, was promulgated in imitation of Daming Huidian, which was a compilation of various laws in Tiancong period.
During the Empress Dowager Cixi period, Lu Niu was still a grassroots judicial organ, and because Tiancong established six departments in five years, the central government had the highest judicial organ and a full-time department-the Ministry of Punishment. When trying a case, sometimes Baylor's flag owners and ministers still have to attend, and finally report to Huang Taiji, who will decide and put it into practice.
From Shunzhi to Opium War
After the Qing dynasty entered the customs, the feudal regime was established throughout the country, and the simple laws and regulations outside the customs were far from meeting the needs, so legislative activities involving a wide range began. Dourgen realized that he could not rule the country by force alone, but must implement feudal legal system. In the first year of Shunzhi, the dynasty took Daming Law as the blueprint and referred to the Manchu system in the late Jin Dynasty. In the third year of Shunzhi, the Supplementary Rules of Qing Law Collection was formulated. This law was a grand ceremony of the Qing Dynasty, and it took three years to abolish it. The coding consists of eight images, such as "six dirty pictures" and "five penalty pictures". The law is the basic law, article 436; An example is the auxiliary method, 824. There are seven laws: name law, official law, household law, criminal law, construction law and so on. This law continued in Kangxi, Yongzheng and Qianlong generations, and was renamed the Qing Law, commonly known as the Qing Law. Laws remain relatively stable, while subsidiary laws, namely regulations, are constantly increasing, from the original 824 to 1892 in Tongzhi.
In addition to the Basic Law of the Qing Dynasty, a series of administrative regulations and rules of ministries and institutes have been formulated, including Kangxi Code, Yongzheng Code, Qianlong Code, Jiaqing Code, Jiaqing Code, Guangxu Code, Guangxu Code, Six Codes and Qin Code. There are also provisions on matters under the jurisdiction of various ministries, such as the Regulations on the Eight Banners Ruled by King James, and the Book of Shipping Ruled by King James. The supervision laws include the Beijing Inspection Law and the Big Map Law, and the ethnic laws include the Mongolian Law, the Hui Law, the Model Law and the Royal Tibetan Charter. In addition, there are various economic regulations and foreign-related laws.
The main contents and characteristics of this law:
First, maintain imperial power and feudal rule. The Great Qing Law clearly stipulates that the emperor enjoys supreme power, and stipulates that Ling Chi, who is guilty of overthrowing the dynasty, shall be executed, implicating his grandfather, uncle and brother's son. If a person is executed in the year, his descendants can avoid death without knowing it, but they must be castrated and sent to Xinjiang.
Second, strengthen ideological dictatorship with punishment. From Shunzhi to Xuan Tong, especially during Kangxi, Yongzheng and Qianlong periods, the literary inquisition was used to crack down on intellectuals who were dissatisfied with the Qing Dynasty. See the article Wenzi Prison for details.
Third, maintain the privilege of the standard bearer and give him a lighter or mitigated punishment. "The Laws of the Qing Dynasty" stipulates: "If a flag bearer commits a crime, he shall be punished with a stick and a whip according to the number of whips, and soldiers shall be exempted from issuing them and be whipped separately. Twenty days a year, every five days; Those who travel 2000 Li will be flogged for 50 days, with five days each; Those who were exiled to the vicinity of the army were whipped for 70 days. " Commutation refers to the death penalty, which can be replaced by beheading for trial.
Fourth, maintain clan privileges. Clan refers to a family with the same paternal line. In order to manage the same clan through the leadership of the clan and consolidate the rule of the Qing Dynasty, the rulers of the Qing Dynasty demanded the establishment of the clan and gave it the power of mediation and trial. The Qing Dynasty used clans to collect taxes, maintain public order, prohibit thieves and commit crimes, and abide by national laws. At the same time, the law provides for maintaining clan privileges, severely punishing "rebellious descendants" and protecting clan property.
V. Criminal system norms. The Qing dynasty abolished some instruments of torture used by factory guards and town officials in the Ming dynasty, such as brain hoop, soldering iron and flail, and took the five punishments built in the Five Dynasties-slap, stick, apprentice, fall and death as the main punishments. You hit your back, hips and legs with bamboo boards or thorns, and your staff hit your back, hips and legs with bamboo boards or thorns. It's just detention and forced labor, and the exile is remote. If you die, you die. Among them, the death penalty is divided into sentencing and probation. To make a decision is to commit a big crime and immediately execute it; Probation is a relatively minor crime, and it is decided whether to kill after the autumn trial. In addition to the five punishments, there are improper punishments such as migration, banishment, cangue punishment, redemption, tattooing, execution, beheading and slaughter. The cangue indicates the crime by putting the prisoner on the cangue, the redemption is to pay a fine with money, the tattoo is to indicate the cause of the crime in Manchu and Chinese, and the year of death is torture: first cut off the breasts and arms, then cut open the internal organs, and finally cut off the head. The beheading is to hang for public display, and the body is to be slaughtered for public display to show shame.
Sixth, the private economy. It is strictly forbidden to buy and sell flag fields (the five-year rule of Xianfeng has been loosened), and the integration of land and field is implemented (see Economy, From a Whipping Method to the Integration of Land and Field for details). At the beginning of Qing Dynasty, in order to suppress Zheng Chenggong's anti-Qing struggle, the order of forbidding the sea and the order of moving the sea were promulgated, which restricted foreign trade and mining, maintained the status of flag-bearer, and also gave slaves some small protection rights. However, during the Yongzheng period, there was a policy of Qing Hai's demotion.
7. Foreign-related laws should be closed to the outside world, pay attention to self-esteem, restrict trade, guard against foreign invasion and exclude Catholicism.
The legal characteristics of this period are closely related to its content. One is to maintain centralization and the privileges of Manchu and clans; the other is to impose severe punishments and laws; the third is ideological dictatorship; and the fourth is to close the country.
The judicial system in this period was much stricter than the Commissioner system. Its central judicial organs maintained the system of "three law divisions" in Ming Dynasty: the Ministry of Punishment, Duchayuan and Dali Temple. The Ministry of Punishment is responsible for the trial, the Dali Temple is responsible for the review, and the Duchayuan supervises officials and participates in the trial of major cases. The local trial level is consistent with the local administrative divisions, and there are four levels: governor, department, government and county.
The procedure of hearing a case is that the lawsuit is first recorded by the county. If the sentence is sentenced to imprisonment, it must be submitted to the government and the inspection department, and then reported to the governor. After the governor agrees, it will be reported to the Ministry of Punishment for the record. Sentenced to exile, banishment, dismissal, by the provincial governors to make a conclusion, file submitted to the punishments, approved by the assistant minister, by the provinces. The death penalty is particularly cautious and is jointly reviewed by the three legal departments. And the fall and the court trial. States and counties will send criminals and files sentenced to death to the provincial capital (Qianlong had to go to the province through the government three years ago). After the audit, the company will report it to the governor. According to the situation, the governor judged whether it was true or postponed, whether it was regrettable or suspicious, and kept it as a sacrifice, and played the emperor's ruling on the topic. The emperor handed the question book to the third law department. The punishment department puts forward handling opinions, not for the truth, suspension, pity, doubt and retention. Distribute opinions to the yamen in Tiananmen Square. One day in August, Tiananmen came together. The clerk read out the punishment decision passed at the joint hearing. Then report to the emperor for a ruling. The court trial is to examine the death penalty cases in the capital. The process is consistent with the autumn review, and the time is early August. The emperor's decision is final. Sentenced to mercy, saved his life, sacrificed to avoid the death penalty, and granted an extension of sentence to continue detention until the next autumn trial or court hearing. If you accept the facts, you will be put to death.
Major cases should be jointly examined by Wang, ministers and Jiuqing. Criminals of the imperial clan and Jueluo are tried by Zongrenfu and the Ministry of Punishment, Mongolian officials and Han local officials participate in the trial, and major local cases are tried by Buzheng and provincial judges. The remand and dismissal of a case shall be jointly examined by the Governor and the supervisor.
From the Opium War to the Late Qing Dynasty
After the Opium War, the Qing Dynasty lost part of its judicial sovereignty. In the New Deal reform, the feudal legal system of the Qing Dynasty quickly disintegrated and evolved into a modern legal system.
The Opium War opened a new stage of legal system in China and Qing Dynasty. After the Opium War, China entered a semi-feudal and semi-colonial society, and the judicial system began to be semi-feudal and semi-colonial. The powers seized consular jurisdiction through unequal treaties and set up judicial courts at will in the concession from the third year of Tongzhi. When the nationals of foreign powers are accused in civil and criminal cases, the courts in China have no right to try them, but the consular courts they set up on China land will try them. This is a serious violation of China's judicial sovereignty and a sign that China has lost its judicial sovereignty.
After Eight-Nation Alliance invaded China, Empress Dowager Cixi issued a letter to reform. Liu Kunyi, Governor of Liangjiang River, and Zhang Zhidong, Governor of Huguang, put forward suggestions to reform the legal system, which were adopted. The Qing court set up a constitutional compilation museum and a law revision museum to be responsible for legal reform. After 10 years of efforts, the old judicial system was reformed and a new legal system was established. The feudal legal system evolved into a modern legal system. Legal reform includes the reform of the judicial system and the establishment of a new legal system.
Reform of the judicial system. First, judicial independence. In the thirty-first year of Guangxu (1906), the Qing government reformed the official system and changed the Ministry of Punishment to the Ministry of Justice, which was the national judicial administrative organ and no longer served as judicial affairs. Dali Temple was renamed Dali College and became the highest judicial organ of the country. The Ministry of Justice has established the General Supervision Office, which has become the highest procuratorial organ. This reform finally made the judiciary independent, and the mixed judicial administrative system in the past collapsed. Second, the reform of the trial litigation system. This paper introduces a series of modern litigation trial principles and systems in the west. Cancel the joint trial system of three courts and nine courts and implement the four-level three-trial system. The trial yamen is divided into four levels: Dali Courtyard, High Trial Hall, Local Trial Hall and Township Bureau (Xuantongyuan started to raise funds and set up a trial hall to train new judicial talents). Civil and criminal cases are tried by primary courts; If you are dissatisfied, you are allowed to appeal to the local court; If you refuse to accept it again, you will be allowed to appeal to the High Court. Civil and criminal proceedings are separated, and procedures such as prosecution, preliminary examination, public judgment, appeal and judgment are established, as well as systems such as public trial, withdrawal, jury and defense. Third, the reform of the prison system. Establish "model prisons" and "criminal training centers" to change the past tradition of punishing criminals with prisons. In the 29th year of Guangxu (1903), Shi Jing model prison was established, and then model prisons were built in some provincial capitals and counties.
The establishment of a new legal system. The establishment of a new legal system depends on the formulation of a new code. After ten years of hard work, a series of modern laws have been formulated. In the 30th year of Guangxu (1904), the Commercial Law and Company Law of Qing Dynasty were promulgated, the Bankruptcy Law was promulgated in the 32nd year, the Outline of Constitution was promulgated in the 34th year (1908), and the Outline of Modern Administrative Law was formulated in the same year. In addition, the Draft Commercial Law, the Draft Criminal Procedure Law and the Draft Civil Procedure Law drafted in 34 years have not been examined by the Qing court, and the Qing Dynasty has already perished.