1. The revision process of the Tang Law-from the Five Virtues Law to the Yonghui Law. Tang Gaozu Li Yuan (A.D. 6 18-626) played in the seventh year of Wude (A.D. 624) as the law of Wude, which was the first code in the Tang Dynasty. There are 500 articles in the Law on Military Morality *** 12. After Emperor Taizong ascended the throne, in view of the fact that the martial law at that time could not fully meet the needs, in the first year of Zhenguan, Sun Chang Wuji, Fang and others were ordered to further revise the martial law and formulate a new code with reference to the Sui Kai Emperor Law, which was called Zhenguan Law in the eleventh year of Zhenguan (AD 637). Zhenguan method or 12 article 500. Revision of Zhenguan Law. For example, the principles and systems of five punishments, ten evils, eight discussions and analogy are determined by increasing the flow of labor and narrowing the scope of death by sitting. The revision of Zhenguan Law basically determined the main content and style of the Tang and Sui Dynasties, which had a far-reaching impact on the later Yonghui Law and other codes.
2. The promulgation of Yonghui Law. Yonghui Law, also known as Tang Law, is an extremely important code completed in Yonghui period of Tang Gaozong. In the second year of Emperor Gaozong Yonghui (AD 65 1 year), Sun Chang Wuji and Li Ji revised the Zhenguan Law. For example, the words in the famous article Zhenguan Original Law were even more "reasonable". They solemnly declared: "The old law was harmful to reason, but now it is harmful to reason to cover up the original appearance." Finally, I played the newly written law 12, which is Yonghui's law. In view of the fact that the central and local governments had different understandings of the legal provisions in the trial at that time, and there was no unified and authoritative standard for the Ming Law Examination of the Imperial Examination every year, Tang Gaozong ordered lawyers to learn generalists and some important courtiers to explain Yonghui Law sentence by sentence in Yonghui three years, and inherited the existing achievements made by Zhang Fei and Tu Yu in the Han and Jin Dynasties, especially in the Jin Dynasty, which lasted 1 and scored12,30 volumes * *, and was called ". After the Yuan Dynasty, people began with the word "discussing Japan", so it was also called "discussing laws in Tang Dynasty". Because of the unified legal interpretation of the whole law, it has brought convenience to the actual judicial trial, so that the book "Old Tang Law" says that "those who broke the prison at that time all cited and analyzed". The role of discussion is very important. In the book The History of Legal Development in China, Yang Honglie, a scholar, thinks that "Yonghui's law has been passed down to this day only through discussion".
Yong Lv Hui Shu summarizes the experience of legislation and legal annotation since the Han, Wei and Jin Dynasties, not only accurately explains and explains the main legal principles and systems, but also quotes Confucian classics as the theoretical basis of law as much as possible. The completion of Yonghui Law marks the highest level of ancient legislation in China. As the highest achievement of China's legal system, Yong Lv Hui Shu fully embodies the level, style and basic characteristics of China's ancient legal system, becomes a representative code of China's legal system, and has a far-reaching impact on several neighboring countries in the future. At the same time, the pre-Zhenguan laws were out of order, so Yonghui Law Book became the most complete, earliest and most influential ancient written code in the history of China. It occupies the most important position in the history of ancient legislation in China.
(2) heinous
1 From "Ten Felony" to "Ten Evil". The so-called "ten evils" are the ten major crimes that seriously endanger the fundamental interests of the ruling class as stipulated by the laws of Sui and Tang Dynasties, which originated from the "ten major crimes" of the laws of Northern Qi Dynasty. On the basis of "ten felonies", the Law of Sui Dynasty gained and lost, and determined the system of ten evils. Tang law inherited this system and included "ten evils" in the name law. The famous book "Yi" in the Law of the Tang Dynasty said: "Among the five punishments, ten evils are particularly serious, and the name of the text is marked with Ming."
The specific contents of the ten evils in the Law of the Tang Dynasty: rebellion, rebellion, evil rebellion, immorality, disrespect, unfilial, disharmony, injustice and civil strife.
The crimes stipulated in the "ten evils" system in the Law of the Tang Dynasty can be roughly divided into two categories, one is the crime of violating imperial privilege and the other is the crime of violating ethical norms. The Law of the Tang Dynasty concentrated these charges at the top of the Law of Ming Regulations, and gave the most severe punishment in specific provisions. Moreover, the Tang law stipulates that those who commit ten evils will always be pardoned without applying the eight suggestions and other provisions, which is the origin of the saying of "heinous crimes". These special provisions fully embody the essence of the Tang law, focusing on safeguarding imperial power, privileges, traditional ethical principles and ethical relations.
(3) six kills, six stolen goods and protecting koo.
1, six kills. According to the criminal's subjective intention, the chapter "Thieves and Thieves" in Tang Law distinguishes six killings, namely, homicide, old homicide, fighting homicide, manslaughter, negligent homicide and playful homicide. The "murder" in the Tang law refers to premeditated murder; "So kill" means that although there is no premeditation in advance, you have the idea of killing when you feel urgent; "Fighting and killing" refers to the criminal act of killing people because of anger and failure in a fight; "manslaughter" refers to the dislocation of the killing target for various reasons; "manslaughter" means "out of sight, out of mind", that is, manslaughter; "Killing game" refers to "violent game" that leads to murder. Based on the above differences, the Tang law stipulated different penalties. Murder, usually several punishments such as murder, but the handmaiden's murder of the master, children and grandchildren's murder of their loved ones is under the death penalty, which embodies the maintenance of traditional ethical principles. Intentional murder is usually punishable by death. Manslaughter will reduce the first-degree punishment of homicide. Fighting and killing also reduces the first-class punishment of homicide. Killing and killing will reduce the second-class punishment for fighting crime. Manslaughter is generally called "atonement theory", that is, making copper atone. The emergence of the theory of "Six Killings" reflects the development and perfection of the traditional killing theory in Tang Dynasty.
2. Six stolen goods. Six kinds of stolen goods refer to six kinds of crimes of illegally obtaining public or private property stipulated in the Tang law. The laws of the Tang Dynasty require officials to be honest and clean, and severely punish those who abuse power for personal gain or graft. The laws of the Tang Dynasty stipulated heavier penalties for property crimes than ordinary people. 6. The stolen goods specifically include the following expenses:
First, "perverting the law by accepting money" refers to the behavior of officials accepting money and perverting the law. The Official System of the Tang Dynasty stipulates that all officials who suffer financial injustice will be arrested with 15 horses.
Second, "it is not illegal to accept money" means that officials accept property without breaking the law. According to the official system of the Tang Dynasty, 30 horses loaded with stolen goods should be put to death even if they don't break the law.
The third is "imprisoned", that is, officials use their powers to illegally accept the property of people or subordinates within their jurisdiction. The Law of the Tang Dynasty stipulated the post station system. Officials are not allowed to accept gifts wherever they go on business trips, and those who take the initiative to ask for or forcibly ask for property will be severely punished. If a prison guard steals the property of his own prison or the property of a prisoner, he will be given a second-class punishment than stealing, and those who steal more than 30 horses will be twisted off. It even stipulates that it is not allowed to borrow property from prisoners; Do not treat subordinates privately or use their powers to do business for profit; Otherwise, depending on the situation, they will be flogged or imprisoned. The Law of the Tang Dynasty also stipulates that officials should restrain their families from accepting prisoners' property, and if their families commit crimes, they should be punished according to the officials themselves. If an insider steals his own things, he will be punished more severely than ordinary theft, and those who steal more than 30 horses will be twisted off.
The fourth is "robber", which refers to the act of obtaining public and private property by violent means. "Tang Law Thieves and Thieves" stipulates that robbers should be severely punished. Although they were deprived of money, they should be sentenced to two years' imprisonment. The murder weapon was the rich man's one foot and three years, the wounded ten horses, and the murderer beheaded.
Fifth, "theft" refers to the act of taking public and private property as your own by covert means. "Tang Law Thieves and Thieves" also strictly stipulates the general theft. Those who have no money will be fined 50, and those who have money will be punished with hard labor.
Sixth, "taking bribes" refers to the behavior that officials or ordinary people illegally give or accept property without taking advantage of their powers. The Miscellaneous Law of the Tang Dynasty stipulates that an official giving or receiving other people's property for something constitutes "taking bribes", and at the same time, it is forbidden for prison supervisors to serve the people and borrow property within their jurisdiction. Offenders will be punished as taking bribes.
The classification of six thieves and the principle of conviction according to the value of stolen goods were inherited by later generations, and the map of six thieves was attached in Ming and Qing Dynasties.
3. Protect you. It refers to a special system that the consequences of the offender's crime do not appear immediately, and stipulates that the offender is responsible for the changes of the offender's injury in a certain period of time. The Law of the Tang Dynasty stipulates: "The time limit for beating people with hands and feet is 10, for beating people with other things, for 20 days, for wounding people with a knife and soup and fire, for 30 days, and for breaking limbs and bones, for 50 days." If the injured person dies within a limited time, the injured person shall bear the criminal responsibility for killing; Those who die outside the limit or are killed by others within the limit will only bear criminal responsibility for hurting people. Although it is not scientific enough, it is an improvement compared with the past to determine the time limit for protecting koo in the Tang Dynasty to determine the criminal responsibility of the injured person.
(4) Five punishments and the principle of punishment
1, five penalties in Tang Law. As the basic legal punishment, the Law of the Tang Dynasty adopted five punishments, namely slap, stick, exile and death, which were established in the Emperor Law of Sui Dynasty, and its specific specifications were slightly different from those in the Emperor Law.
(1) flogging, the lightest of the five punishments, is divided into five grades, ranging from 10 to 50, and each grade is increased by10;
(2) The stick punishment is also divided into five grades, ranging from 60 to 100, with ten sticks for each grade;
(three) fixed-term imprisonment, divided into five grades, one year to three years, with half a year as the equal difference;
(4) Exile punishment is divided into three categories, namely, 2,000 li, 2,500 li and 3,000 li. There is also a service stream, which is three thousand miles long, but it will serve in the local area for three years after arriving in the exile;
(5) The death penalty is divided into beheading and strangulation.
2. The principle of punishment in Tang law.
(1) Principle of distinguishing between public and private.
The main purpose of distinguishing public crimes from private crimes in Tang law is to protect the enthusiasm of officials at all levels in performing official duties and exercising their functions and powers, so as to improve the efficiency of state governance; At the same time, we should prevent some officials from abusing public interests for personal gain and abuse power for personal gain to ensure the unity of the legal system.
(2) the principle of surrender. First, strictly distinguish between surrender and rehabilitation. In the Tang dynasty, a person who can confess his crime to the court without being arraigned is called surrender. However, after the crime was exposed or the official found out that he had escaped, he surrendered himself again, which was called rehabilitation in the Tang Dynasty. Rehabilitation is forced, which is different from surrender. In the Tang Dynasty, the principle of commutation was reformed. Second, it is stipulated that serious crimes such as treason or crimes that cause serious consequences and irreparable damage do not apply to surrender. Anyone who "hurts others but can't atone for things", "cross-border adultery, private astronomy, is not among those who surrender." In other words, those who surrender to the above crimes will not be regarded as surrendering. Because these consequences are irreversible. Third, it is stipulated that the person who surrenders can be exempted from punishment, but "the stolen goods are still collected according to law", that is, the stolen goods must be fully compensated according to law to prevent the person who surrenders from illegally obtaining money. Fourth, incomplete surrender is called "false surrender", and incomplete confession of criminal circumstances is called "endless surrender". The Law of Famous Cases stipulates that "those who surrender falsely or incompletely" shall be punished as "untruthfulness without pardon". For the dead, listen to the reduction. "As for the part of the truthful confession, I will not pursue it.
In addition, the "Tang Law" stipulates that those who have committed a misdemeanor can commit a felony for the first time and be exempted from the felony; Those who can hand over the remaining crimes after interrogation are exempt from capital punishment. For the purpose of distinguishing and cracking down on crimes, Tang Law comprehensively and systematically developed the principle of surrender in traditional criminal law. These contents affect future generations.
(3) the principle of analogy. The Law of the Tang Dynasty on Famous Cases stipulates: "If there is no rule of proper conviction, those who should be guilty should lift the weight to be light; Those who are guilty must be light and heavy. " That is, if the punishment should be mitigated for similar cases that are not expressly stipulated by law, the provisions on misdemeanor punishment should be listed and the cases with serious circumstances should be solved through comparison. For example, the law says that murder requires beheading, but there is no provision for the crime of injury and felony murder. When dealing with cases that have hurt relatives, you can draw inferences from others and know that you should be punished by beheading. For example, in the middle of the night, the host rushed to kill the intruder in self-defense, regardless of the crime. There is no harm in law, but analogy stipulates that killing is no longer a crime, especially injury. The perfection of analogy principle in Tang Dynasty reflected the development of legislative technology at that time.
(4) the principle of transferring outsiders. The law of the Tang dynasty stipulates: "all foreigners and those who commit similar crimes must abide by this common law;" People who commit all kinds of crimes have laws to follow. " That is, foreigners of the same nationality who commit crimes in China shall be dealt with by the Tang Dynasty according to their own laws, and the principle of individualism shall be implemented. Foreigners of different nationalities who commit crimes in China shall be punished in accordance with the laws of the Tang Dynasty and the principle of territoriality shall be applied. At that time, it not only safeguarded national sovereignty, but also properly solved various legal disputes caused by the arrival of a large number of foreign nationals.
(V) Characteristics of Tang Law and Chinese Legal System
1, the characteristics of "the unity of etiquette and law".
2. The characteristics of simplicity and moderation.
3. Improve the characteristics of legislative technology.
4. The law of Tang Dynasty is a model of China's traditional code and a symbol of the formation of Chinese legal system.
As a representative work of Chinese legal system, the Law of the Tang Dynasty transcended national boundaries and exerted great influence on Asian countries. The contents of Korean Koryo Law are all taken from Tang Law. The Dabao Law formulated by Wu Wen is also based on the Tang Law. The laws of the Tang Dynasty were mostly used in the criminal books issued during the period of Li Taizun in Vietnam. It can be seen that the law of the Tang Dynasty occupies an important position not only in China, but also in the legal history of the world. (A) the compilation of the Song Criminal Code
1, Song Punishment Series. In the fourth year of Song Taizu Jianlong (AD 963), the Song Law was revised at the invitation of Dou Yi, the minister of the Ministry of Industry. It was completed in July of the same year, written by Taizu, "copying Dali Temple rigidly and promulgating it in the world", which became the first published code in history. The full name is the detailed sentence system of the Song Dynasty, which is referred to as the punishment system of the Song Dynasty. This is the first public code in history. Take laws with the same or similar nature and relevant provisions such as orders, orders, forms, forms and uses as one door. It contains some popular words, decrees, tables and forms in the Five Dynasties, forming a code structure of decrees.
The compiling style of the Criminal Code can be traced back to the general category of large and medium-sized criminal laws promulgated by Emperor Xuanzong of the Tang Dynasty. The Criminal Code of Dazhou, which was adopted in the early years of Northern Song Dynasty, was the result of the development of the criminal code of the Five Dynasties. In the specific compilation, the criminal code is still based on the traditional criminal law, and at the same time, the relevant provisions such as regulations, orders, styles, court bans, general subjects of counties and counties are classified and attached, making it a comprehensive code.
There are several characteristics in the comparison between the Criminal Code of Song Dynasty and A Brief Introduction to the Laws of Tang Dynasty: First, the contents of the two books are basically the same. The Criminal System of Song Dynasty is also 30 volumes, with 12 and 502 articles. Second, the Criminal Code of the Song Dynasty is divided into 2 13 chapters in chapter 502 of 12, with the same or similar laws and related regulations, orders, forms, forms and requirements as one chapter. Thirdly, the Criminal Code of Song Dynasty contains some orders, decrees, tables and forms that prevailed in the Five Dynasties, forming a code structure of laws and decrees. Fourthly, the historical origin before each article in the Tang Law was deleted in the Song Criminal Code, and some words were changed because of taboos, such as changing the word "respect" from "disrespect" to "respect".
2. edit. The original intention is an elder's exhortation to inferiority. After the Northern and Southern Dynasties, it became an imperial edict. The literary inquisition in Song Dynasty refers to the orders given by the emperor to specific people or things. Orders are often more effective than laws and become the basis for final decisions. According to the laws of the Song Dynasty, this temporary order of the emperor had to go through the "restraint theory" of Zhongshu Province and the "blockade" of Xiamen Province before it was given the legal effect of the whole country.
Compilation is the legislative process of sorting out individual decrees into books and upgrading them to general legal types. Editing was an important and frequent legislative activity in Song Dynasty. When Zongshen was founded, there was also a special editing organization "Editorial Room". Judging from the compilation of Stegosaurus in the Taizu period, whenever a new emperor ascended the throne or changed the yuan, it should be compiled. The characteristics of editing are:
(1) In the past, Renzong basically had "parallel laws and regulations", and the compilation and revision were generally classified according to the style of laws and regulations, but they were independent of the criminal code of the Song Dynasty.
(2) The status of Zongshen dynasty has been improved. "Whoever doesn't back in the law firm will break it", which is enough to break the law and replace the law with law.
(3) Mainly about the provisions of crime and punishment. The so-called "severe punishment is embarrassing."
(2) the change of punishment
1, rod folding method. "History of Song Dynasty Criminal Law Annals" said: "The system of folding accounts was decided only when Taizu meditated." Stegosaurus promulgated the "Broken Staff Law" in four years, aiming at winning the hearts of the people and changing the disadvantages of severe punishment and severe laws since the Five Dynasties. The new "Folding Staff Law" stipulates that in addition to the death penalty, other punishments
The four punishments of staff, apprentice and running were all converted into hip staff and spine staff. The specific conversion method is: convert all the rod-smashing punishments into hip sticks and put the sticks. The sentence was converted into a spinal rod and released after the rod. Change the fashion into a spinal rod and serve it on the spot. The method of breaking the stick makes "the crime of migrating away from home, with the longest exemption year and fewer tricks". The method of folding branches has played a certain role in easing social contradictions. Does not apply to treason, robbery and other felony. There is also abuse in the specific implementation. History of Crime in Song Dynasty once said: "It is a lifelong shame for a good citizen to commit crimes occasionally, causing injuries to his limbs, while a foolish one is shameless, although he suffers for a while."
2. Matching services. Matching service punishment originated from mobile matching punishment in Sui and Tang Dynasties. After the implementation of the folding staff method, the original exile was actually called matching service. In order to make up for the huge difference between the death penalty and the punishment after breaking the staff, the court increased the types of servitude and some additional punishments, making servitude a very complicated crime.
Three years. As a kind of death penalty, Ling Chi began in the Western Liao Dynasty in the Five Dynasties. (3) Contract Marriage Law (1), Daming Law and Mingda Patent.
(1) Daming Law. Daming Law was compiled by Zhu Yuanzhang, the founding emperor of the Ming Dynasty, in the early years of the founding of the People's Republic of China, and completed and promulgated in the thirty years of Hongwu, with 7 articles, 30 volumes and 460 articles. It changed the traditional criminal law style, and added seven chapters: example, official, household, ceremony, soldier, punishment and work to meet the needs of strengthening centralization. Daming Law occupies an important position in the history of legal system. Its legal text is simpler than the Tang law and its spirit is stricter than the Song law. It has become a feudal law that will not change throughout the Ming Dynasty. The formulation of Ming law has gone through four stages: ① Wu Tiannian's Daming Law. In view of the lesson of legal corruption at the end of Yuan Dynasty, Zhu Yuanzhang once said: "The court ruled the world because of the husband's statutes." So, in the first year of Wu (A.D. 1367), he ordered Zuo Shanchang and others to draft laws and regulations, and formulated 285 laws and regulations, making 145. By December of the first year of Wu, "the laws and regulations were complete and the decree was promulgated." This is the earliest law drafted and promulgated in the Ming Dynasty (Daming Law). Laws are compiled according to the laws of the Tang Dynasty, and arranged in the order of six parts according to the style of Yuan Dynasty. It laid the foundation for the later Daming Law. (2) The Daming Law of Hongwu for six years. In the sixth year of Hongwu (A.D. 1368), Daming Law was detailed in winter and was written in February the following year. Its "content is accurate in the Tang Dynasty ┅┅ it is divided into thirty volumes". Imitating the style of Tang Law 12, the method of famous examples is put at the end, and the content is more complicated than that of Tang Law. It was promulgated after Zhu Yuanzhang's "pro-discretion". (3) Ming Law in the 22nd year of Hongwu. Later, due to the "Regulations", in the twenty-second year of Hongwu (AD 1380), the province and prime minister of Zhongshu were abolished, so it was "more determined". The first article in the next article imitates Yuan's compiling style. According to the six parts, it will be changed into six laws: official, household, ritual, soldier, criminal and industrial, with a total of 30 volumes and 460 articles. From Sui and Tang Dynasties (except Yuan Dynasty), the code structure that has been followed for 800 years has changed. The basic provisions are still the same as the Tang law, but it is clear that the law "lightens its misdemeanor and weighs its felony". Compared with the Tang Dynasty, the legislative technology is more detailed, and the style is more complete and scientific. Later, I chose 147 from The Big Bow written by Hongwu in the 18th or 20th year and attached it to the law. (4) Thirty years of Hongwu Daming Law. After thirty years of Hongwu, he finally completed the patent of Daming Law, and announced it to the world for the world to know and abide by. It took more than 30 years for Ming law to be established, which shows the positive and cautious attitude of legislation.
(2) Ming Dazhao. When Zhu Yuanzhang revised the Daming Law, in order to prevent "extra-legal traitors", he also ordered four editions of the Law on Big Officials from the 18th year of Hongwu (A.D. 1385) to the 20th year of Hongwu (A.D. 1387), with a total of 236 articles, similar to the Daming Law. Mingda Gao embodies Zhu Yuanzhang's thought of "ruling the world with heavy code"
Imperial edict is a special criminal law in the early Ming Dynasty. Dayu's name comes from the Confucian classic "Shang Shu Da Yu", which was originally a warning to his subjects when the Duke of Zhou marched eastward to the Yin people. Ming Taizu compiled the cases he personally tried into a book, and added the "discipline" caused by the case, which was promulgated as a special law to discipline his subjects. For the original crime in law, Dagong generally increased the punishment. Another characteristic of imperial edict is the abuse of extra-legal punishment. The punishments listed in the four imperial edicts, such as clan punishment, beheading, chopping hands and toes, are all torture that has not been included in the law for a long time since the Han Dynasty. "Severe punishment for officials" is another feature of Daguan, mostly for punishing corrupt officials to strengthen the ruling efficiency. Imperial edict is also an unprecedented law in the legal history of China. Every family should have an imperial edict, which is also included in the imperial examination. After Ming Taizu's death, this great coat was shelved and had no legal effect.
(3) Ming and Qing ceremonies.
(1) big code. It was compiled in Ming Yingzong and was first compiled in the fifteenth year of Hongzhi in Xiao Zhong, but it was not promulgated. Supplement to School Journals of Wuzong, Sejong and Zongshen Dynasties. Daming Hui Dian basically follows the Six Codes of the Tang Dynasty, taking six official systems as the key link, and describes the responsibilities and examples of various administrative organs. Under every official position, laws and regulations come first, and role models come second. Therefore, as far as its content, nature and function are concerned, the Code of Daming Club is still an administrative code, which plays a role in adjusting the administrative and legal relations of the country.
(2) Qing Hui Dian and Qing Administrative Law. In order to standardize the organization and activities of state organs, strengthen administrative management, and improve the ruling efficiency of officials, since Kang, the Qing court followed the example of the Ming Hui Dian and compiled the Qing Hui Dian, which recorded the responsibilities, examples, activity rules and related systems of major state organs in various dynasties. There are five codes of Kangxi, Yongzheng, Qianlong, Jiaqing and Guangxu, which are collectively called "Five Dynasties Code" and "Qing Dynasty Code".
Since the compilation of Ganlong Hui Dian in the twenty-seventh year of Qianlong, the compilation of Qing Hui Dian has always followed the principle of "taking Dian as the key link and taking examples as the purpose", and the compilation of Dian and examples has become a fixed style. Generally, it is the basic system of the country, and there are few changes. The specific amendments were completed in the Regulations. (1) Judiciary
1, the judicial organs in the Tang and Song Dynasties. The Tang Dynasty followed the Sui system. The emperor set up Dali Temple, Ministry of Punishment and Yushitai to perform their respective judicial functions. During the Song and Tang Dynasties, the central government set up Dali Temple, Ministry of Punishment and Yushitai, and the central judicial power was separated.
(1) Dali Temple.
(2) Department of Punishment and Criminal Court.
(3) Yushitai.
(4) The "Three Division Judges" in the Tang Dynasty. When a major case occurred in the central or local government of the Tang Dynasty. The temporary Supreme Court, composed of assistant minister of punishments, Zhong Cheng, an imperial adviser, and minister of Dali Temple, is called the "Judge of the Third Division". Sometimes when a major case occurs in a local area and it is inconvenient to send it to the central government, Dali Temple is sent to adjudicate the case. The Ministry of Punishment is the foreign minister and the suggestion is the "three secretaries". In addition, in the Tang Dynasty, the system of gathering all capitals was established. Whenever there was a major death penalty case, the emperor ordered that "four books in Chinese should be discussed above, and nine ministers in Chinese should be discussed" to show caution.
(5) local judicial organs. The local judicial organs in the Tang Dynasty were still managed by the Chief Executive. In judicial trials, county and county governors are assisted by assistants. At the state level, Cao tried to join the army or the judiciary, and at the county level, judicial assistants and historians were set up. The county has the right to mediate a criminal case between a township official and Li Zheng, and the result must be reported to the superior. In the Song Dynasty, local counties and counties still implemented the system of judicial and administrative integration. However, since the reign of Emperor Taizong, the local judicial supervision has been strengthened, and the prison department has been set up above the prefecture as the judicial branch of the central government in various places. I would like to mention that the Criminal Prison Department regularly visits counties, supervises trials and keeps detailed records of prisoners. If a local official tries to break the law, if the circumstances are minor, he can be sentenced by the criminal justice department immediately. In the worst case, report to the emperor for a ruling.
2. Judicial organs in Ming and Qing Dynasties. The central judicial organs are the Ministry of Punishment, Dali Temple and the Supervision Department. Change the system of Dali Temple, Ministry of Punishment and Yushitai since Sui and Tang Dynasties.
(1) Thirteen divisions were added to the Criminal Department in the Ming Dynasty to take charge of criminal and civil cases in various provinces and strengthen local judicial control; The punishments department of the Qing Dynasty is the presiding organ of the Qing Dynasty and one of the six departments. It is in charge of the national "legal punishment name" affairs. It consists of seventeen official departments, which are responsible for the trial affairs in the capital and provinces. There is also a department for arresting fugitives, an autumn trial department for autumn trials, and a revised law museum specializing in the revision of laws and regulations. The Ministry of Punishment is the most important judicial institution in the Qing Dynasty, which has always played a leading role in handling state legal affairs. It is mainly responsible for: first, trying crimes committed by central officials; The second is to review the serious cases reported by the local authorities (the death penalty should be submitted to Dali Temple for review); The fourth is to handle local complaints and autumn trials; The fifth is to preside over judicial administration and revision of laws and regulations.
(2) In the Ming Dynasty, Dali Temple reexamined and refuted, and found that there were "people whose love stories were unknown or lost", so it rejected the punishment and changed the sentence to reexamination. If such three changes are improper, please ask the emperor to make a ruling. According to the laws of the Qing Dynasty, the main duties of Dali Temple are to review death penalty cases, rehabilitate unjust imprisonment, and participate in the joint trial of autumn trial and hot trial. If the penalty is found to be wrong in conviction and sentencing, it can be refuted.
(3) The imperial court of Ming Dynasty patrolled and picketed. It is mainly to picket hundreds of departments, and judicial activities are limited to the joint trial and trial of official criminal cases, without the principle of supervision and law enforcement. There are thirteen ways to supervise the empire. Duchayuan is the highest supervisory organ in the country, responsible for supervising the discipline of officials and correcting illegal bullets. At the same time, he is responsible for supervising the punishments and Dali Temple. If there are serious mistakes in the punishments and Dali Temple, we can propose to correct the bullets. You can also participate in the joint trial of major cases.
The above-mentioned three central judicial organs are collectively referred to as the "three major legal departments". For major and difficult cases, three courts of three departments jointly try them, which is called "joint trial of three courts".
(4) local judicial organs.
3. Jurisdiction system. In the jurisdiction of cross-cases, the Ming Dynasty inherited the principle of "weight is light, light is less, and weight is more" in the Tang Dynasty. At the same time, it is stipulated that "if the plaintiff sues in two counties, the plaintiff will be brought to justice", which embodies the legislative intention of the Ming Dynasty to implement the defendant principle and reduce prevarication. In addition, in the Ming dynasty, the military and civilians were prosecuted separately, and all officers and men who committed crimes and "people who have nothing to do with the people" were "interrogated by their own military courts." If the "overseas military-civilian lawsuit" involves "treason and secrecy", it may be allowed to be accepted by the chief commander of the guard, generals and officers stationed in the garrison. If the military case yamen and the local government are "integrated". It reflects the perfection of military trial procedure and jurisdiction system in Ming Dynasty.
4. Extension personnel and factory guards.
(1) extension personnel. That is, the system that the emperor ordered, Li Si supervised the punishment, the Royal Guards punished and flogged ministers above the imperial court. The emperor's extra-legal punishment deepened the internal contradictions of the ruling clique and had a bad influence on the implementation of the legal system.
(2) the "factory" and "health" spies of the judiciary. This is not only a major feature of the Ming Dynasty's judicature, but also a major drawback of the Ming Dynasty. This factory is directly under the emperor's secret service. "Wei" means that at the end of the Ming Dynasty, the emperor appointed his cronies as "prefects" and ordered the instruments of torture of the Royal Guards to be destroyed and could not be used again. By the end of Ming Dynasty, the number of factory health agents had exceeded100000, which seriously interfered with the judicial work. First, the company has no right to change the ruling made by the factory, and sometimes it has to be implemented. Second, illegal arrest and execution are not bound by law.
(2) Litigation system
Third, the changes of the judicial system in the late Qing Dynasty.
(A) the reform of the judicial system and the four-level three-trial system
The Qing government carried out a series of reforms to the old litigation and trial system, but this was only a form. Show in:
1. Judicial reform in the late Qing Dynasty. Change the Ministry of Punishment into the Ministry of Law, which is in charge of judicial and criminal affairs throughout the country; Changing Dali Temple into Dali Courtyard is the highest judicial organ in China. Implement the trial and inspection office.
2. Implement a four-level three-trial system. Establish a series of litigation systems in the modern sense, practice the system of four levels and three trials, and formulate the system of public prosecution, evidence and bail in criminal cases; The trial system is open and evasive.
The examination and employment system for judges and prosecutors was initially stipulated; Improve the prison and prison management system.
(2) Consular jurisdiction and trial and mixed courts.
1. Main contents of foreign consular jurisdiction in China. Also known as "extraterritorial jurisdiction", it is a judicial privilege stipulated by foreign invaders in the unequal treaties they forced China to conclude. Where countries enjoy consular jurisdiction in China, their nationals in China are not subject to the laws of China, and only the consulates of that country or judicial institutions in China will try them according to their own laws. 1834 was established in Hong Kong on July 22nd, and the subsequent Sino-British Five-Port Trade Charter and Tariff and the Humen Treaty were expanded in a series of unequal treaties.
(1) content. China people and overseas Chinese in countries with consular jurisdiction shall sue the public according to the principle of the defendant; Litigation between citizens of countries with the same consular jurisdiction shall be tried by their own countries; The defendant principle is applicable to litigation between nationals of different countries: disputes between nationals of countries with consular jurisdiction and nationals of countries without consular jurisdiction are governed by Sadgaudi principle, and the latter is under the jurisdiction of China courts.
(2) Judicial organization. The first instance shall be tried by the consular court or tribunal of China; Appeals of second instance are tried by appeal courts established in three countries; The final case is accepted by the highest judicial organ of the country.
(3) consequences. It has seriously damaged China's judicial sovereignty, at the same time, it is also an amulet for foreign invaders to commit various crimes and a tool to suppress the people's revolutionary movement in China.
2. Observation system. The system of forcibly intervening in the trial in China established by western powers after they obtained consular jurisdiction in China is that the consular officials of the country where foreigners are accused also have the right to attend the trial in person. If they think there is something wrong with the trial and judgment, they can present new evidence. This system is an expansion of the original consular jurisdiction and an infringement of China's judicial sovereignty.
3. Mixed courts. 1864 the Qing court and the British, American and French consuls in Shanghai agreed to set up a special judicial organ in the concession. In all cases involving foreigners, consular officials must attend the joint hearing; Cases between China people and foreigners are tried or decided by their own consuls, and even cases between China people in the concession are tried and manipulated by foreign consuls. Its establishment is the expansion and extension of foreign consular jurisdiction in China.