First article
1. Why do we say that our laws originated in the Xia Dynasty?
A: China's state and laws originated in the Xia Dynasty. The main basis is:
(1) Xia Qi was the first hereditary emperor in the history of China who was above the whole society.
(2) Xia has begun to divide the ruling areas by region. After Xia Qi seized power, he carried out a series of conquest wars, divided the conquered area into "Kyushu", appointed "Jiumu" as the governor of Kyushu, and began to form a new national administrative division.
(3) Xia Dynasty established a complete state machine, including army, officials, prisons and tribute system.
(4) The Xia Dynasty also formed a legal system directly backed by the national coercive force.
2. Briefly describe the characteristics of China's legal sources. (Home has fallen)
A: (1) has a strong color of consanguinity.
(2) Patriarchal centralized rule is the basic rule.
(3) Law and morality are combined with each other, and the boundaries are unclear.
(4) Criminal laws and regulations are relatively developed, while civil laws and regulations are relatively backward.
3. Briefly explain that "no ceremony can stop Shu Ren, and no punishment can stop doctors".
Answer: "You can't punish a doctor for indecent assault" is an important principle in ancient China law, which originated from the Book of Rites? Quli began in the Western Zhou Dynasty. As a legal principle, "courtesy cannot be inferior to Shu Ren, and punishment cannot be superior to doctors" emphasizes the inequality between ordinary people and aristocratic bureaucrats and the legal privileges of bureaucrats and nobles.
The so-called "courtesy can't be less than Shu Ren" means that Shu Ren is too busy to prepare things. He is busy with productive labor and does not have the material conditions required by aristocratic status and etiquette, so it is impossible to act according to the etiquette of nobles at all levels. These ceremonies are not for them. However, this by no means means means that Shu Ren can not be bound by the ceremony, because the ceremony emphasizes the hierarchy, the emperor has the ceremony of the emperor, and the vassal has the ceremony of the vassal, so it cannot be overstepped. Any overstepping of the ceremony will be punished, especially for Shu Ren.
The so-called "not being punished as a doctor" originally refers to the aristocrats who have committed crimes above that of a doctor. Under certain conditions, they can get certain forgiveness and enjoy certain privileges when applying punishment. For example, nobles generally don't corporal punishment (that is, corporal punishment can't go to see a doctor); The deceased must be secretly executed in the suburbs; Ordering a husband and a woman not to succumb to prison procedures and so on. The main reason for this is to maintain the dignity of the whole aristocracy in front of the ruled. However, these courtesies do not mean that nobles above doctors can be exempted from punishment. In real life, bureaucratic aristocrats should also be punished for committing serious crimes, especially those who "make an insurrection". There are countless records in the history books about the killing and sentencing of bureaucrats and nobles.
Patriarchal clan system: a political situation in which blood ties are the link and family organizations are combined with the state system to ensure the hereditary rule of blood nobles.
The eldest son inherits; The small clan has a large amount of clothes, and the younger brother is willing to serve the older brother; Governors, ministers and scholars at all levels are not only a family organization, but also constitute a level of state power, and they are responsible for the same son-Zhou.
4. Briefly describe the main penalty principles of the Western Zhou Dynasty.
A: (1) The principle of mitigating punishment for crimes committed by Xian Yi, young and old. According to historical records, there was a law of "three pardons" in the Western Zhou Dynasty. The three pardons are: "one is young and weak, the other is old and the other is stupid for three days", and all of them forgive his sins. In the Western Zhou Dynasty, people over 80 years old, over 90 years old and teenagers under 7 years old were exempted from punishment.
(2) Distinguish the principle of intentional-non-birth and negligence-birth, recidivism-danger and occasional-non-end. During the Western Zhou Dynasty, intentional crime and negligent crime, recidivism and occasional crime were different in concept. Although a minor crime has been committed, it is not because of negligence, but because of recidivism, so it must be killed; On the other hand, although the crime is big, it is not a recidivist and cannot be executed because of negligence.
(3) The principle that the suspected crime is lighter and the suspected crime is forgiven. In the Western Zhou Dynasty, in order to ensure prudence in the application of the law and prevent innocent people from being killed by mistake, all doubtful cases and difficult cases were given a lighter sentence or pardoned, that is, the so-called "five punishments for suspicion are exempted, and five punishments for suspicion are exempted".
(4) The principle of combining leniency with severity. Based on the thought of "cautious punishment", the Western Zhou Dynasty emphasized "the middle way", "moderate punishment" and "the right way" in the issue of conviction and sentencing, that is, it required moderate leniency and severity, which was in line with the right way.
5. The specific content of the so-called "five don't let go" is: "five penalties are not satisfied, five don't let go" ① "being an official" is to bend the law and fear power; 2 "only opposing" means reporting personal grievances and bending the law; 3 "only inside" refers to favoritism for nepotism of relatives; 4 "goods only" refers to taking bribes and bending the law; ⑤ "only coming" refers to being asked by private individuals to change the law.
The second article
1. Briefly describe the marriage principles of the Western Zhou Dynasty.
A: There were three principles for marriage in the Western Zhou Dynasty, namely monogamy, unmarried sharing the same surname and parents' orders. Any marriage that does not meet these three conditions is indecent and illegal.
(1) Monogamy is the basic requirement of the marriage system in the Western Zhou Dynasty. Although ancient men could have concubines and maids-in-waiting, there could only be one legal wife, the first wife.
(2) "Unmarried with the same surname" is also a prerequisite for marriage. The Western Zhou Dynasty implemented the principle that people with the same surname should not marry, which was mainly based on two points: First, long-term experience proved that "it is not uncommon for men and women to have the same surname"; Second, it is forbidden to marry people with the same surname, and it is encouraged to marry people with different surnames, so as to "attach far and thick differences", that is, to strengthen ties with aristocrats with different surnames through marriage and further consolidate the family world and patriarchal clan system, which has a distinct political intention.
(3) "Parents' orders and matchmakers' words" is another principle of the marriage system in the Western Zhou Dynasty. Under the patriarchal clan system, children's marriage must be decided by their parents and completed through the words of matchmakers, otherwise it will be indecent and illegal, and will not be recognized by the clan and society.
Seven-thirds: don't go with your parents; No children; *; Jealousy; Got a serious illness; Talk a lot; Theft. Take something and don't return it; And more than three years of mourning; Before poverty and after wealth.
2. Briefly describe the "five listening" system in the Western Zhou Dynasty.
A: The system of "five enumerations" was five methods to judge the truthfulness of the statements made by the parties in the Western Zhou Dynasty. Its specific content is: (1) "Listen": "Observe what he says, if it is not correct, it will be annoying", that is, observe the verbal expression of the parties, and those who are justified will be confused. (2) "color listening": "Look at its color and blush irregularly", that is, observe the facial expressions of the parties, and those who are reasonable will blush. (3) "Breathing": "Look at its breath, irregular breathing", that is, observing the breathing of the parties, irregular breathing. (4) "Listen": "Listen while watching. If it is not straight, it will be chaotic, that is, observing the hearing of the parties, and if it is not right, it will not be clear. (5) "Eyes and ears": "Look at the eyes, if it is not straight, it will be clumsy", that is, observe the eyes and eyes of the parties, and if it is unreasonable, it will be absent-minded.
3. Briefly describe the historical significance of the publication of written laws in the Spring and Autumn Period and the Warring States Period.
A: The publication of written laws in the Spring and Autumn Period was an epoch-making change in China law. The publication of written law indicates that the legal system of slavery is disintegrating and the legal system of feudalism is gradually taking shape.
(1) The activity of publishing written laws is a denial of traditional legal concepts, traditional legal systems and traditional social order. Breaking the belief that "punishment is unknowable and power is unpredictable" shows that the legal system is no longer the private property of a few people, but should become an open regulator of the whole society, and the traditional social structure has changed accordingly.
⑵ The activity of publishing written laws objectively provided conditions for the further development of feudal system. The publication of written law is conducive to the emerging landlord class to show and fix the reform results in legal form, and provides a reliable guarantee for the emergence and development of various new social relations.
(3) The publication of written law also marks the development and progress of legal concepts and legal technology. It is of great significance for the development of China's ancient legal system and legal culture to publish written laws and turn scattered and unsystematic legal norms into relatively systematic and strict legal provisions.
(4) The publication of written laws in the Spring and Autumn Period accumulated experience for the development and perfection of feudal laws in the Warring States Period and beyond. On the basis of the written laws of various countries in the Spring and Autumn Period, the feudal legal system in the Warring States Period was further improved.
4. Briefly describe the text structure and historical position of the Classic of Law.
A: The Classic of Law consists of six chapters: one is the law of stealing, the other is the law of stealing, the third is the law of netting, the fourth is the law of catching, the fifth is the law of miscellaneous goods, and the sixth is the law of instruments. Among them, the Theft and Thief Law is a legal provision on punishing those who endanger national security, others and property. Li Kui thought that "the king's government should not be eager to be a thief", so he listed the Theft Law and the Thief Law at the top of the code. The Internet Law, also known as the Prisoner Law, is a legal provision on imprisonment and trial of criminals, while the Arrest Law is a legal provision on the pursuit of thieves, thieves and other criminals. Internet Law and Arrest Law mostly belong to the category of procedural law. "Five Miscellaneous Laws" is about other crimes and punishments besides "thief", which mainly stipulates "six prohibitions", namely * prohibition, cunning prohibition, city prohibition, drama prohibition, imprisonment prohibition, gold prohibition and so on. The sixth chapter "Residence Law" is about the provisions of legal principles such as lighter punishment and heavier punishment, which plays the role of "addition and subtraction" and is equivalent to the general part of modern code.
Historical position: As the first systematic and complete written feudal code in the history of China, the National Law occupies an important historical position in the feudal legislation of China.
⑵ The Classic of National Law is an important achievement of political reform in the Warring States Period, and it is also a typical representative and comprehensive summary of feudal legislation in the Warring States Period. As one of the important contents of Li Kui's political reform, The Classic of Law is also an affirmation of social changes in this period.
⑵ The style and content of the Classic of Law laid an important foundation for the further improvement of the later feudal written code. In terms of style, Six Chapters of Fa Jing was directly inherited by Qin and Han Dynasties and became the main content of Qin and Han laws. After Wei and Jin Dynasties, it further developed on this basis, and finally formed a perfect code style with Ming Execs as the guide and each chapter as the sub-rules. From the content, the main contents of the Classic of Law, such as "thief", "thief", "prisoner", "arrest", "miscellaneous" and "equipment", are mostly inherited and developed by later feudal codes.
Therefore, the Classic of National Law is an extremely important legal code of China, no matter from its historical role or its influence on later generations.
5. Briefly describe the content and historical significance of Shang Yang's political reform.
A: Main contents:
(1) Reform the law into law and expand the legal content. After Shang Yang "learned from Qin", he once "changed the law (as flat as water) into the law". Shang Yang "changed law into law". "Law" emphasizes the universality and necessity of legal norms and has the function of "unifying all differences in the world". "Changing law into law" is another progress of legal concept (equality-universality).
(2) sitting. Shang Yang widely practiced the system of sitting together during the political reform. These systems nip all kinds of hidden dangers that endanger the country in the bud and play an important role in maintaining domestic social order and ensuring political stability.
(3) Home order. In order to encourage the development of small-scale peasant economy and expand the source of household tax, Shang Yang also issued a separation order, stipulating that "if the public has more than two men, the tax will be doubled", forcing the people to separate and set up households to increase the national fiscal revenue.
Historical significance of the political reform: Shang Yang's political reform was an extremely profound social change, which surpassed the reforms of other vassal States in this period in depth and breadth. This reform not only dealt a heavy blow to the conservative forces of Qin, but also provided a strong legal guarantee for the political and economic development of Qin. The feudal legal system of Qin also developed and improved rapidly in the process of reform, which laid the foundation for the Qin Dynasty to unify China.
The third article
1. Briefly describe the basic principles of conviction and sentencing in Qin Dynasty.
A: ① Provisions on criminal responsibility. According to the Qin law, minors who commit crimes shall not bear criminal responsibility or be given a mitigated punishment. For the criminal responsibility, Qin law established height as the standard.
(2) The principle of distinguishing intention (purpose) from negligence. Qin law attaches importance to the difference between intentional crime and negligent crime. In Qin Law, it is intentionally called Duan or Duan Wei, and negligence is called dereliction of duty. Intentional crime is given a heavier punishment, and negligent crime is given a lighter punishment.
(3) According to the principle of conviction of theft value. In Qin Law, stolen goods are divided into 1 10 yuan, 220 yuan and 660 yuan. For the theft of property, according to the above different grades of stolen goods, they were convicted respectively. Generally, those with less stolen goods have a lighter conviction, while those with more stolen goods have a heavier conviction.
(4) The principle of aggravated punishment for the same crime and group crime. In the Qin law, the punishment for crimes against property is heavier for group crimes (more than five people) than for individual crimes and joint crimes.
⑤ The principle of aggravating recidivism. If he has committed a crime and committed the crime of false accusation and frame-up, he should be given a heavier punishment. In addition to the initial punishment for resisting courtiers, he should be sentenced to six years' hard labor in Cheng Dan.
⑥ The principle of aggravated punishment for abetting crime. According to the provisions of the Qin law, abetting juvenile offenders is an aggravated punishment.
All landowners surrender and mitigated punishment principle. According to the Qin law, anyone who escapes with borrowed public property and voluntarily surrenders himself shall not be treated as theft, but as the crime of escaping. Those who can take the initiative to eliminate the consequences of a crime after committing it may be given a mitigated punishment.
⑧ falsely accuse the principle of sitting backwards. According to the Qin Law, anyone who deliberately fabricates facts to frame others constitutes the crime of false accusation and frame-up, and those who falsely accuse and frame-up shall be punished according to the punishment received by the defendant.
2. Briefly describe the corporal punishment reform of Emperor Wenjing.
A: Emperor Wen of Han ordered the abolition of corporal punishment and changed severe punishment (ink punishment) to the punishment of restraining Cheng Dan; Change the flogging to 300 flogging, change the left toe to 500 flogging, cut off the right toe and abandon the city.
During the period of Emperor Jing of Han Dynasty, the reform of penalty system was further deepened on the basis of Emperor Wen's reform. Then he ordered Wendy's fine of 300 pounds to be changed to 200 pounds. Cut the left toe from 500 to 300. Later, the imperial edict issued: "subtract 300 from 200, and subtract 200 from 100." In the same year, Emperor Jingdi issued an imperial edict to reform the instruments of torture, and no substitution was allowed during execution. This has made the reform of the criminal system a big step forward.
Principles of criminal law application: appeal (when an official commits a crime, ask the emperor to give some preferential treatment to the guilty); First kiss and then hide (relatives can conspire to hide criminal acts and will not report and testify)
3. Briefly describe the Spring and Autumn Trial.
A: The so-called Judgment in the Spring and Autumn Annals refers to the "subtle words and great righteousness" in the Spring and Autumn Annals as the basis for judicial trials, especially as an important basis for deciding difficult cases. It was advocated by the rulers of the Han Dynasty, and it was the inevitable product of the legal Confucianism after Emperor Wu of the Han Dynasty established "to oust a hundred schools of thought and respect Confucianism alone". The most important principle of Prison in the Spring and Autumn Period is "convincing people with heart", that is, whether the subjective motivation of the actor conforms to the Confucian spirit of "loyalty" and "filial piety". If so, even if his behavior constitutes social harm, he can be mitigated or exempted from punishment. On the contrary, the subjective motivation of criminals seriously violates the spirit of "loyalty" and "filial piety" advocated by Confucianism. Even if it does not cause serious harmful consequences, it should be considered a crime and given a heavier punishment. The so-called "good and illegal people are exempt; Those who are evil and conform to the law will be punished. " "Quasi-five services to punish crimes"-golden law; Officials-Northern Wei Law and Chen Law; Eight opinions on entering the law-Cao Wei's law; Ten Major Felonies-Northern Qi Law
4. Briefly describe the system of "quasi-five-service punishment".
A: The "Jin Law" established the system of "quasi-five-service punishment" for the first time. "Conscription" was originally marked by mourning in ancient China. A system that specifies the distance between relatives.
The feudal clothing system divided relatives into five grades: cutting off relatives, mourning for three years, wearing extremely thick linen and seamless edges; Cui Zi's relatives were mourned for less than one year, and the second-class linen was mourned. I have been in mourning for nine months, wearing coarse clothes; Small work, mourning for five months, wearing a small coarse cloth; I served three months of mourning and wore fine clothes. The servitude system not only determines the rights and obligations such as inheritance and support, but also determines the principle of severe punishment when relatives commit crimes.
In the application of criminal law, the tighter the service system, the lighter the punishment; The heavier the punishment, the humbler the offender. The farther the system is, the more severe the punishment is. If you are humble and respect others, the punishment will be lighter. The establishment of "quasi-five-service punishment" system is one of the important symbols of Confucian feudal law, which has a wide influence until the Ming and Qing Dynasties.
5. Briefly describe the main achievements of Kai Huang's Law.
Answer: (1) Style ① Twelve styles. On the basis of the Northern Qi Law, Huang Kai Law summarized the previous legislative achievements, adjusted the provisions, and determined 12, including name cases, guard prohibition, job system, household marriage, stable storage, wanton prosperity, thief fighting, fraud, miscellaneous laws, arrest to death, prison break, etc.
(2) Five hundred laws. Huang Kai Law has formulated 500 laws, which embodies the characteristics of "simplifying the punishment network".
(2) content
(1) The feudal system of five punishments was formally formed. Huang Kailu deleted the severe punishments in Wei, Jin, Southern and Northern Dynasties, and fixed the punishments as slap, stick, apprentice, exile and death penalty. Among them, flogging ranged from 10 to 50, and stick punishment ranged from 60 to 100, with a total of five grades. Sentences range from one year to three years, with a difference of six months each;
Exile punishment ranges from 1000 Li to 2000 Li, with a difference of 500 Li; There are two kinds of death penalty: strangulation and beheading. Since then, the feudal five-punishment system has been formally established and used by later generations.
② Distinguish between public crime and private crime. The "Imperial Law" stipulates that those who commit private crimes are more than five products, and one official is only two years; Above grade nine, one official is an apprentice for one year. Those who commit public crimes will receive one year more for each official; When you are a runner, you will be given a grade.
(3) Change "ten felonies" into "ten evils". On the basis of the "Ten Major Crimes" in the Northern Qi Dynasty, Huang Kailu formally formed the "Ten Major Crimes" system. Ten evils are: rebellion for one day, rebellion for two days, rebellion for three days, rebellion for four days, immorality for five days, disrespect for six days, unfilial for seven days, discord for eight days, injustice for nine days and civil strife for ten days.
④ Improve the system of "eight opinions" and "official positions". Mainly manifested in making feudal aristocratic bureaucrats enjoy privileges such as "reducing cases", "hearing redemption" and "being an official". "Reducing the case" refers to the "eight opinions" and the fact that officials with more than seven grades can be reduced by one level after committing crimes; "Listening to ransom" means that officials above grade nine commit crimes and can redeem them with copper; "Official tax" refers to the use of official goods to pay imprisonment. Thus, the feudal privilege was systematized and legalized, and the feudal privilege of aristocratic bureaucrats was maintained.
The fourth article
1. Briefly describe the characteristics and historical significance of Tang Law.
A:
1. Characteristics of Tang Law.
(1) "Combination of etiquette and law". The Tang Dynasty inherited and developed the previous ruling style and legislative experience of combining etiquette and law, which made the legal content "accurate" and truly realized the unification of etiquette and law. Combining the spiritual power of feudal ethics with the power of national legal rule, the coercive force of law strengthened the binding role of ceremony, and the binding force of ceremony strengthened the deterrent force of law, thus constructing a strict ruling legal network and effectively safeguarding the feudal rule of the Tang Dynasty.
(2) The rules are concise and moderately broad. The characteristics of legislation in Tang Dynasty are simple rules, moderate width and simplicity. On the basis of the former law, the Tang dynasty once again implemented the principle of 12 law and 500 law.
(3) The punishment is even. The penalties stipulated in the Law of the Tang Dynasty are lighter than those in previous dynasties, and the death penalty and exile penalty are greatly reduced. There are only two kinds of death penalty: strangulation and beheading; In addition to compulsory service, exile only served for one year; Imprisonment is only one to three years; The number of poles is also greatly reduced. More importantly, the applicable penalty is lighter; The principle of addition and subtraction of punishment is also manifested as a lighter punishment.
(4) The language is concise and clear, and the legislative technology is high. The language of Tang law is concise and clear, and it shows a superb level in legislative technology. For example, surrender, turning outsiders into criminals, and the establishment of analogy principle are all concentrated manifestations. In order to prevent officials from abusing the port, this paper provides a method to deal with the intentional and negligent conviction of officials in the absence of explicit provisions in the law. The Law of the Tang Dynasty further clarified the concepts of public crime, private crime, intention and negligence, and stipulated appropriate sentencing standards.
2. The historical position of Tang Law.
(1) The Influence of Tang Law on China Feudal Law. The law of the Tang Dynasty is a model of feudal code in China and occupies an important position in the legal system of China. The Tang dynasty inherited the legislative achievements of Qin and Han dynasties and absorbed the legal achievements of Han and Jin dynasties, which made the Tang law show a high degree of maturity. The law of Tang Dynasty is a typical and representative of feudal code, so it has a far-reaching influence on the laws of Song, Yuan, Ming and Qing Dynasties.
(2) The influence of Tang Law on East Asian countries. As a typical representative of Chinese legal system, the Law of the Tang Dynasty not only had a great influence in China, but also transcended national boundaries, especially in East Asia. For example, Korea's Koryo law is based on the Tang law, Japan's Dabao law is also based on the Tang law, and Vietnam's Li Taizun's torture book also uses the Tang law. It can be seen that the law of the Tang Dynasty occupies an important position not only in China, but also in the world.
2. The five punishments system in the Tang Dynasty?
Compared with the Sui Dynasty: flogging 10 to 50, caning 60 to 100, a total of five levels; Sentences range from one year to three years, with a difference of six months each; Exile punishment ranges from 1000 Li to 2000 Li, with a difference of 500 Li;
A: First, the death penalty. The death penalty is divided into strangulation and beheading, which is much lighter than the previous generation.
Second, exile. According to the law of the Tang Dynasty, the mileage is increased by 1000 Li on the basis of the Sui system, resulting in a flow of 2,000 Li, 2,500 Li and 3,000 Li, all of which are labor for one year. In addition, the forced labor flow, that is, three thousand miles and three years of hard labor, was added as a pardon for some death sentences.
Third, imprisonment. There are five grades: one year, one and a half years, two years, two and a half years and three years.
Fourth, the rod punishment. There are five grades: sixty, seventy, eighty, ninety and one hundred.
Fifth, flogging. There are five grades: ten, twenty, thirty, forty and fifty.
3. heinous?
A: "Ten evils" refer to major criminal acts that directly endanger the order of monarchy and seriously undermine feudal ethics. Specifically:
When it comes to rebellion, it is plotting against the emperor and feudal monarchy. The second is to seek great rebellion, that is, to plot to destroy ancestral temples, tombs and palaces. Third, rebellion, that is, plotting to betray the court and go abroad. The fourth is evil, that is, beating or murdering grandparents, parents, uncles and parents. Fifth, "there is no way", that is, killing more than three people and dismembering them in a non-capital crime family. Six, disrespect, that is, stealing things that are worshipped by gods, stealing and casting royal treasures, falsely using them, cutting harm by reason, and keeping the system without being an official ceremony. Seventh, unfilial, that is, sending or cursing grandparents, parents, grandparents, parents who are alive but have different wealth, etc. Eight is discord, that is, murder or betrayal of relatives above, beating or reporting husbands and elders who have made meritorious deeds above. Nine is injustice, that is, the crime of unfilial, the crime of pleasure, the crime of releasing from Shunji, the crime of remarriage, and the crime of killing one's own homeowner, secretariat, county magistrate and current teacher. Ten is civil strife, that is, relatives or fathers or grandparents have concubines above minor merits.