I agree with the conclusion that China's legal system is "separate provisions of civil punishment" and "criminal code is the main code of past dynasties", but I think that the characteristic of the code is that "civil punishment is not divided, and all laws are unified".
First, the code is a criminal code, and a large number of administrative laws and civil laws are not included in it. China's legal system is composed of various departmental laws, and civil punishment is divided, but at the same time, it is said that the code is "a combination of laws, and civil punishment is not divided", which is logically contradictory. Criminal code belongs to the category of criminal law. Whether to adjust the legal relationship by penalty is the fundamental difference between criminal law and civil law, administrative law and other departments. If the code is a combination of laws, including civil law, administrative law and other departmental laws, how can it only be classified as criminal law? If the representative codes of past dynasties are "no distinction between civil and criminal", how can we summarize the characteristics of Chinese legal system as "no distinction between civil and criminal"? Obviously, this view confuses the nature of the code and infinitely expands the scope of the legal content contained in the code.
Among the various legal forms in ancient China, the code as a criminal law is only one of them. Civil, administrative, economic, military and other laws throughout the dynasties are mostly contained in the law in the form of decrees, regulations and rules. In addition, there are a lot of one-way methods, which are extremely rich in content. As can be seen from the above table 1 and table 2, there were a large number of administrative, economic and military laws in the Han Dynasty, which were not included in the code. So did other dynasties. Other legal forms outside the code set the code of conduct in all aspects of national social life, and it is impossible to incorporate all other legal forms into the code with the requirement of "simplicity and stability".
Second, the code regulates criminal relations, not all legal relations.
The theory of "all laws are unified, and civil punishment is not divided" in the code holds that in ancient China, all kinds of legal relations were always regulated by a unified criminal law, which is inconsistent with historical facts. From the pre-Qin Dynasty to the Ming and Qing Dynasties, the scope of legal relationship between criminal and civil, administrative, economic, military and other legal adjustments is different. During the Western Zhou Dynasty, Duke Zhou formulated the etiquette law and Duke Lu formulated the criminal law, and etiquette law and criminal law became the two major departmental laws at that time. Rite is a comprehensive law regulating administration, economy, military affairs, civil affairs and litigation, and punishment is a law of conviction and sentencing. "Where the ceremony goes, the punishment will go. If you are rude, you will be punished. " . Since Shang Yang "changed law into law", "law" has become the special name of ancient criminal law in China, and the code has become the main criminal code of various dynasties since Qin Dynasty. Although the name of the ceremony has been consistent for thousands of years, its nature is quite changeable. As a code of conduct, etiquette covers the laws of various departments, including civil law. Since Qin and Han Dynasties, a new legal form "Ling" has appeared. "Order, teaching and life". It is the way of "should" and "shouldn't", which stipulates the basic system and social life norms of the country from the front. After Wei and Jin Dynasties, a large number of decrees were made, and the "decrees" became more and more independent. The new laws and regulations formulated by the rulers, including civil and administrative norms, are mostly attributed to "decrees". Ritual orders are different from laws that stipulate how to punish, and generally do not directly stipulate specific punishments. As stated in Volume 30 of the Book of Jin Criminal Law, "Military affairs, agriculture, industry and drinking ... are not allowed to enter the law, and I know that there are orders. If they violate the law, they will enter the law. " Although the names of legal forms in past dynasties have changed, the law has always adjusted various criminal relations in the society at that time.
In ancient Chinese law, although there is no special civil procedure law as in modern times, it also pays attention to the division between civil and criminal in litigation. "Da Sikou, Qiu Guan, Zhou Li" says: "It is forbidden to construct a civil lawsuit by two structures, attack the DPRK, and then listen to it; Take two doses, ban people from prison, enter the gold for three days, and then listen. " Zheng's note that "litigation refers to those who accuse each other with money and goods" is a civil lawsuit; "Prison refers to people who accuse each other of crimes", that is, criminal proceedings. Civil and criminal proceedings have been different since ancient times, and successive dynasties have also paid attention to the distinction. Ye's China Civil Law History and other works systematically show the ancient civil legal norms and civil litigation system in China. The General History of China Legal System, edited by Zhang, also studies the criminal, administrative, economic, military, civil and litigation legal systems as special chapters. The book comprehensively introduces civil laws and regulations, including civil litigation. Therefore, we can't just rely on the criminal code to conclude that in ancient China, all kinds of legal relations were adjusted by unified criminal law means.
There is a difference between man and punishment, and so is punishment and politics. These legislative principles are the same at all times. Of course, there are also some problems in the ancient code that should be adjusted by civil and administrative law, but handled by criminal law. This phenomenon has its profound social ideological roots, which is related to the influence of Confucian ethics and family concept on legislation under the closed natural economic conditions, and also related to ancient people's understanding of illegal and criminal acts. According to the legislators at that time, the penalty provisions involving civil content in the codes of past dynasties all belong to the scope of "giving gifts to the punishment" and have nothing to do with the so-called "no distinction between punishment and people". Just as the Criminal Law of People's Republic of China (PRC) stipulates the crime of infringing on property, it can't be said that it is a combination of laws and regulations without considering civil punishment, nor can it be concluded that it is a combination of laws and regulations without considering civil punishment because ancient laws involve civil issues.
Thirdly, judging from the compilation of codes of past dynasties, the comprehensive compilation form is generally adopted by written codes in China, not unique to codes.
In ancient China, besides codes, the compilation of non-criminal codes such as decrees was also very developed. Before the Spring and Autumn Period, there were laws but no codes. The compilation of the code began in the Spring and Autumn Period. According to historical records, Zhao Dun, the state of Jin, "started with the national government, formulated regulations, punished crimes, established criminal prisons, escaped from the East Pole, emphasized quality, treated the elderly, respected himself, and continued his regular duties without stagnation." After the job is done, it is normal to give Yoko and Jato the right to promotion. "This is the earliest written code recorded in ancient China, but this code was not published at that time. The Code written by Li Kui in the Warring States Period was the earliest written code published in China. The code began in the Qin and Han Dynasties, and it was called positive punishment. The system of making laws and regulations is based on the custody system, which first prevailed in Wei and Jin Dynasties. Recording laws and regulations in the form of ceremonies began in the Tang Dynasty and continued into the Ming and Qing Dynasties. Most dynasties after Wei and Jin dynasties have enacted laws, and the "legislation system" is parallel to the code. The statute code is a comprehensive code with administrative law as the main body, including economic, civil, military, judicial and administrative legal norms, and occupies a very important position in the national legal system. According to the records in Six Codes of Tang Dynasty and Chronicles of Criminal Law, when Wei 18 Law was enacted, 45 state and county orders, official orders in Shangshu 180 and military orders had been made.
Main legal forms and representative laws in Qin and Han Dynasties
Table 1
dynasty
form of law
Example of legal name
Literature source
surname
law
In addition to the six laws of thief, thief, prisoner, arrest, miscellaneous and preparation, the Qin law also has the following single laws.
The law of establishing officials, the law of effectiveness, and the law of food transmission
Historical miscellaneous laws in calligraphy belong to national laws.
Law of removing officials, law of removing disciples and law of vagrancy.
Farmland stable law and warehouse law
King's urban law
The hunting rules of Bussyma
Tibetan law, Fu law, military law and Jue law.
Law of intermediate labor, law of defense and law of dining table.
The law of directing handyman is equal to the law of work.
Sikonglv, etc
Bamboo Slips of Qin Tomb in Shuihudi
manufacture
Book burning law
Field orders and grassland reclamation orders
Tianjin Customs Order
Yi San Zuling
Shi Ji Qin Shi Huang chicken
Bamboo Slips of Qin Tomb in Shuihudi
Zhang Qian's Notes on the History of Emperor Han Hui
Han Shu Gao Hou chicken
travel
progress of work
Bamboo Slips of Qin Tomb in Shuihudi
style
Closed diagnostic type
Bamboo Slips of Qin Tomb in Shuihudi
course
Cattle and sheep course
Bamboo Slips of Qin Tomb in Shuihudi
law
Answer a question.
Legal question and answer
Bamboo Slips of Qin Tomb in Shuihudi
announce
Language book
Bamboo Slips of Qin Tomb in Shuihudi
Han/Han/Chinese/human
law
1. formulation method
Nine laws (9 articles, comprehensive compilation)
Chapter (18)
Lv Chao (6 articles)
Law of Palace Crossing (Article 27)
History of criminal law in Han dynasty
Criminal Law Records in the Book of Jin
Criminal Law Records in the Book of Jin
Criminal Law Records in the Book of Jin
(Lv Hou) Two years of law.
(28 kinds of laws and decrees, comprehensive compilation)
Jiangling Zhangjiashan Han bamboo slips
2. Heterogeneous law (one-way law)
Great musical rules
Notes on Li Zhou Guan Chun's Preface
Lu Wei
Notes on the History of Emperor Zhao of Han Dynasty
Upper limit counting law
Notes on Zhou Li's Chun Guan Dian Lu
Gold painting
Notes on the History of Continuing Han Rites
Monetary law
Historical records: list of generals and officials
Tianlu
Notes on Judge Zhou Li Qiu Guan
Land rent tax law
Historical records: list of generals and officials
Left official law
Hanshu List of Governors and Kings
Book value method
The history of Emperor Ji of Han Hui
manufacture
1. In the name of Party A, Party B and Party C (comprehensive edition)
Jia Ling
Lingb
Ling Bing
2. In the name of the region (comprehensive compilation)
Le Lang's decree
Northern decree
3. On behalf of the government (comprehensive compilation)
Guanglu decree
Captain's decree
Ding Wei's decree
Tingwei Ban Ling
Dahonglu's order
imperial edict
Han Shu Xuandi Ji
Criminal Law Records in the Book of Jin
Criminal Law Records in the Book of Jin
Shuowen department
Juyan Han Bamboo Slips Exegetics United School 10 28
Biography of Han Shu and Wang Yan in Liu Dan
Interpretation of Dunhuang Han Bamboo Slips 982
Biography of Hanshu Zhang Tang
Criminal Law Records in the Book of Jin
496 Han Bamboo Slips Unearthed in Shule River Basin
Han bamboo slips unearthed from No.8 dry beach slope in Wuwei
4. In the name of content (mostly single-line method)
Rank order
Gongweiling
Pingling
Ren Zi Ling
Notice order
Gong Ling
An order under prison supervision
(The above is the official management category)
Notes on Hanshu Moon Hee
Notes on the Biography of Hanshu Zhang Shizhi
Notes on Han Shu Guanbai Gongqing Table
Han Shu Aidiji
The biography of hanshu von Wang Ye
Historical Records Biography of the Scholars
Han Shu Di Jingji
Tian Ling
Shuiling
Mafu order
Kimblin
The Biography of Huang Xiang in the Later Han Dynasty
Han Shu er zhuan
Hanshu Shihuozhi
Notes on The Tale of Gauhandi
Draft (above is economic management)
Hanshu Shihuozhi
Ciling
Notes on Hanshu Moon Hee
Sacrificial order
Notes on Records in Han Shu Jiao Ci
Zhai Ling (above is etiquette)
Notes on Sacrificial Records in Hanshu
Garrison order
Historical records: list of famous soldiers
public order
Order the sale of knighthood (above is military)
Han Shu He He Chuan
Historical Records: The Book of Equality
Prison order
Notes on Han Shu Guanbai Gongqing Table
order
History of criminal law in Han dynasty
Imprisonment order (above is judicial)
Han Shu Pingdi Chicken
Fetal support order
The History of Zhang Di Ji at the End of Han Dynasty
Pension orders (above are pension and fetal support)
Han Shu Wendy Ji
The branch of academic or vocational research.
legal department
Biography of Guo Gong in the Later Han Dynasty
Cephalotaxus
Simultaneous interpretation of Hou Han Liang
Ninggaoke
Chen Zhongchuan in Hou Han Dynasty
Drilling and drilling department
Escape capsule
Heterogeneous subfamily
Book-throwing and market-abandoning section
The Biography of Chen Chong in the Later Han Dynasty
Chen Zhongchuan in Hou Han Dynasty
Criminal Law Records in the Book of Jin
Criminal Law Records in the Book of Jin
product
the highest official rank in imperial China
Defense equipment
Biography of Han Shu belle
Miscellaneous notes collection 203
mass run
Juyan new bamboo slips EPT56.280-28 1
Jiupin
redeem
1262 Dunhuang Han bamboo slips
Juyan New Bamboo Slips EPT56 35-37
Huo feng pin yue
New bamboo slips of EPF Juyan 16 1- 17
compare
Decision ratio
Notes on Dasikou, Qiu Guan, Zhou Li
Death penalty ratio
History of criminal law in Han dynasty
Ratio of resignation to litigation
Yu Bao Biography of Dongguan Han Dynasty
Fabidumu
Biography of Han Shu Yu Bao
Marriage resignation lawsuit
Criminal Law Records in the Book of Jin
Decision ratio
Criminal Law Records in the Book of Jin
Situdumu
Criminal Law Records in the Book of Jin
Ding Wei decided this matter.
The Book of the New Tang Dynasty: Records of Arts and Literature