In the long process of development and evolution, the ancient Chinese judicial system has unique and distinctive characteristics that are different from other legal systems in the world. A series of systems established in ancient China, such as the judge responsibility system, the prosecutor's supervision system, the recusal system, and the death penalty review system, were all relatively good systems in ancient justice. Not only did they play a useful role under the historical conditions at that time, some systems also Our socialist legal system construction today still has certain reference significance.
Looking at China’s four thousand years of ancient judicial system, we can summarize the following basic characteristics.
(1) High degree of centralization, the emperor has supreme power.
This is the most essential feature of China’s judicial system and even China’s traditional legal system. Ancient Chinese society has always been ruled by absolutism. Laws originated from imperial power and were used to safeguard imperial power. China's traditional judicial system lasted for thousands of years from its inception, development, maturity and disintegration, among which the ideological principle of the supremacy of imperial power had the most obvious impact on it.
The supreme rulers of all dynasties exercised personal dictatorship with their supreme power. The "fate" of the monarch in slave society is the law, while the emperor in feudal society has supreme power. The emperor is both the supreme legislator and the supreme judge. Since the establishment of the feudal autocratic system in the Qin Dynasty, the supremacy of imperial power has been the basic organizational principle of state power, and it is also a concept generally accepted and believed by people from all walks of life. Confucianism regards "Three Cardinal Guidelines and Five Constant Virtues" as the most fundamental ethical principles, of which "the way of monarch and ministers" is the core. Regardless of social life or political life, monarchy has always been in an irreplaceable central position. In terms of legislation, the feudal monarchs "spoke of the Heavenly Constitution" and legislated according to their own will. The laws of the past dynasties were ultimately expressed in the form of the emperor's personal will. In the field of judicial trials, feudal emperors controlled the fate of their subjects and had the power to kill and seize. From the Qin Dynasty to the Qing Dynasty, the emperor has always been the highest judicial level in the country's judicial organs and has the final jurisdiction over all major and important cases.
From the perspective of the establishment of judicial organs, ancient Chinese judicial organs have experienced a historical evolution process from simplicity to complexity, from coarse to fine, and finally to centralization. In terms of the judicial system, from the Shang and Zhou dynasties to the Ming and Qing dynasties, ancient Chinese judicial organs gradually transformed from the unitary system of Sikou or Tingwei to the separation of three laws. This is a mechanism that both divides labor and restricts each other, and operates well. However, from the Song Dynasty to the Ming and Qing Dynasties, the power of the Three Law Divisions was gradually concentrated in the Ministry of Punishment, and was eventually controlled by the emperor. In trials, justice became a royal tool, and all major and difficult cases were decided by the emperor himself. Only the emperor exercised final judicial power, and the emperor could directly access and interfere with judicial work through direct prosecution and detention. In addition, the trial of other cases must also be reported to the emperor regularly. When the emperor handled a case, he could abide by existing laws, or he could act expediently and ignore the laws. Because the emperor holds the final judicial power, such a case must go through the emperor's trial before it is considered final. Therefore, there is no modern "two trials and final trial" system. Cases move from trial to review step by step, without the constraints of final trial. Before the Qin Dynasty, general cases could be resolved by the county judicial organs themselves. In the Han Dynasty, a system of reporting suspicion to prison was implemented. Later, it gradually evolved into a trial-level system, which was fully mature by the Ming and Qing Dynasties. The case was filed at the county level but was closed.
Afterwards, the case needs to be registered in the "circulation book" and wait for inspection by the superior authority. Major cases must be reported directly, so only the emperor, as the supreme judge, has the final judicial power. Therefore, the fairness and integrity of ancient Chinese justice did not depend on the quality of the judicial system itself, but largely depended on the emperor's wisdom and stupidity. Judicial order is often destroyed by human factors, eventually leading to judicial darkness, which is the inevitable result of a high degree of centralization.
Chaos of justice and administration
The unification of justice and administration is another striking feature of China’s traditional judicial system. This feature is manifested in the fact that in the central institutions, the emperor not only often judged cases according to his own will and undermined the established "common law", but also established a system that allowed many administrative, military and even court agencies to participate in the trial to limit the The possible independence tendency of the judiciary makes it completely subordinate to itself. Therefore, it can be said that in a centralized autocratic country, it is an inevitable result that administration and justice are not separated.
The judicial organs of China's past dynasties were branches affiliated with the administrative department and one of the functional departments of the court, but they were not independent. From local to central levels, the judicial branch is subordinate to the executive branch.
In the central government, the Tingwei in the Qin and Han dynasties was one of the nine ministers of the central government, while the Ministry of Punishment had always been one of the six ministries of the central government in the Tang, Song, Ming and Qing dynasties. However, these judicial organs must absolutely obey the emperor's orders and are generally subject to central administrative centers such as the prime minister and cabinet. At the local level, the judiciary is subordinate to the executive. During the Shang and Zhou dynasties, local judicial power was controlled by princes. After the Qin Dynasty, it was controlled by local administrative agencies at all levels such as county governors and county magistrates. Although local governments also have full-time judicial officials, such as Jue Cao (Han Dynasty) and Judicial Strategist Jun (Tang Dynasty), at the trial level, subordinates are subject to the administrative affiliation formed by superiors, and judicial power has never been independent.
If traditional Chinese society has a division of labor between administration and justice in the setting up of central institutions to meet the needs of social management, then at the local level, the unification of imperial power is directly reflected in the unification of justice and administration. The magistrate is a judicial judge at the same level, and judicial adjudication is one of the main responsibilities of the magistrate. There is no need to establish a judicial body in addition to the administrative machinery to perform judicial functions. Police officers must be held accountable if mistakes are made while assisting in solving crimes.
It should be said that it is unreasonable for local officials to be personally responsible for judicial trials or to unify judicial administration. On the one hand, this is an inevitable stage in the development of the judicial system. In ancient times when the division of labor in various fields of social management was not obvious, the integration of the two could improve management efficiency and effectively meet social needs. From this perspective, the uniqueness of the integration of justice and administration in the traditional Chinese judicial system is not the form of this unity itself, but mainly the long-term continuation of this form. This involves another aspect, the most important aspect, which is the influence of imperial autocracy mentioned above. In ancient China, local officials were only the emperor's agents in various places, or in other words, they were managers of the imperial power in various places based on the principle of "respecting the city, valuing wealth, and selling wisdom." Therefore, his existence and how to exist only depended on the local needs of the autocratic imperial power. As analyzed above, the most essential characteristic of autocratic imperial power is the monopoly of power. He was unwilling and never allowed a binary structure at the local level that separated the executive and the judiciary, as this would actually hinder the effective implementation of his will. Therefore, it is the most logical system for the local governor to direct administrative justice, and the criminal name Qiangu has become the most important management position of the local governor.
The confusion between administrative and judicial trials has led to some undesirable consequences. For example, administrative means are used to handle judicial matters. Because handling judicial affairs is only one of the administrative functions of officials at all levels, or is confused with administrative functions, the two are often confused and cannot be easily distinguished. This leads to local officials handling judicial affairs in an administrative manner. tendencies of affairs. The undesirable consequences are authoritarianism, arbitrariness, contempt for judicial procedures, etc. It then reduces the professionalism of judicial officers. The local governor is also in charge of judicial affairs, and the legal literacy of the local governor determines the quality of his judicial cases. In ancient China, local officials mostly adopted the methods of recommendation, imperial examination selection, and emperor appointment. Most of the important criteria for elected officials did not include legal literacy. Therefore, the legal literacy of local officials at all levels was generally low. China has a history of more than 2,000 years.
However, in the period of feudal autocracy based on economy, there was no soil for the rule of law, so there was no extravagant hope of judicial independence. Judiciary was only a part of administrative activities.
(3) Civil penalties
Although ancient China has had a simple distinction between civil and criminal matters since the Zhou Dynasty, it has never formed a distinction between civil and criminal matters in the sense of a modern judicial system. definition. As the saying goes, "One generation has its own laws." In ancient China, there was no distinction between civil law, criminal law, and procedural law in legislation. Instead, all laws were integrated into one, with criminal law as the mainstay, civil and criminal laws as a mixture, and substantive law and procedural law as a mixture. In the judicial system, there is no distinction between punishment and civilians, and heavy punishment is imposed on civilians.
There are many reasons for this phenomenon:
First of all, the natural economy has always been dominant, and the development of the commodity economy is relatively weak. Because civil legal relations are the legal expression of the general requirements of commodity economic life, the development of commodity economy directly determines the development of civil law. In ancient China, the backward and conservative natural economy dominated for a long time and hindered the development of civil legal relations.
Secondly, the harsh rule of feudal autocracy always implemented the policy of focusing on agriculture and suppressing business. During the two thousand years from the Qin Dynasty to the Qing Dynasty, the autocratic system continued to strengthen, excluding the possibility of legislation in any city with a developed commercial economy. In an autocratic system, the maintenance of imperial power was consistent with the consolidation of the state, which was the main concern of legislators.
As for the interests between private individuals, they are regarded as "minutiae" and of no importance. In order to protect the autocratic system based on the natural economy, the feudal rulers of the past dynasties vigorously promoted the policy of focusing on agriculture and suppressing business. Since the Ming and Qing Dynasties, the implementation of the maritime ban policy has severely damaged overseas trade and budding capitalist factors. In this context, businessmen also looked to land management as a more reliable source of financial resources.
Third, personal dependence relationships exist for a long time. "Private law equality" in the legal relationship of rights and obligations cannot be widely provided, and "private law equality" is only an important condition for the development of civil law.
Fourth, family laws and clan rules play a practical role in adjusting civil legal relations within the clan. These so-called family laws and family rules are essentially customary laws within the family. They play a practical role in adjusting civil legal relations such as property, inheritance, and marriage within the family. They are connected and complementary to national laws.
Because there is no way to distinguish between civil litigation and criminal litigation, let alone the division of civil litigation and criminal litigation, it is basically a set of criminal litigation. In ancient China, many marital property issues were resolved through criminal means. For example, according to the laws of the Tang Dynasty, if a woman breaks the contract and fails to repay her debt, she will be punished if she submits a marriage certificate and has a private contract but reneges on the marriage. Therefore, a considerable part of ancient family marriage cases were criminal cases. There is no special code for procedural law in ancient China, but there are provisions on litigation in the Tang Code and Ming and Qing laws, such as litigation in the Tang Code, prosecution in the Ming and Qing laws, etc. The judicial system in ancient China was to safeguard the interests of the privileged ruling class, and the execution of sentences on behalf of the people also reflected its purpose of suppressing the people and consolidating rule.
(4) The combination of etiquette and law is based on Confucianism.
The patriarchal system and family rule tied by blood are the foundation for the existence and consolidation of ancient Chinese states. In ancient Chinese law, etiquette occupies an important position. "Etiquette is the first and foundation of government." It is both a moral norm and a legal norm.
Qin Shihuang ruled the country by law. In the early Western Han Dynasty, he was generally an "overlord and a miscellaneous army". By the time of Emperor Wu of the Han Dynasty, due to the policy of "deposing hundreds of schools of thought and respecting only Confucianism", Confucianism, which originated from the studies of Confucius and Mencius, became the theoretical basis and guiding ideology of feudal law for nearly two thousand years, and gradually formed a system with the fusion of etiquette and law as its basic feature. Feudal legal thought system.
Starting from the Han Dynasty, with the establishment of Confucianism and the advocacy of Han Confucianism, the path of incorporating etiquette into law began, and the combination of etiquette and law reached its peak in the Tang Dynasty. "Tang Lun Lun" clearly declares: "Morality is the foundation of politics and religion, and punishment is the purpose of politics and religion." The two cannot be neglected, such as "morning and dusk and autumn dusk". The combination of rituals and punishments is mainly manifested in the following aspects. First, the behavioral norms regulated by rituals in patriarchal ethics constitute feudal law.
Basic content. Second, in civil and minor criminal cases that are subject to mediation, comity plays a practical role in adjusting the law. Third, for some cases, the judgments are "incompatible with etiquette and justice", and the same crime is punished differently. Fourth, the "five services" system for distinguishing blood relatives and friends has become an important basis for judging cases and sentencing. The "five clothes" system began in the Han Dynasty. Since the Yuan, Ming and Qing Dynasties, mourning clothes have been listed at the top of the criminal law, which is of great significance not only for criminal trials but also for the settlement of civil disputes. Listing mourning clothes at the top of the criminal law is another concrete manifestation of the introduction of ritual into the law.
The influence of Confucianism on the feudal judicial system is mainly reflected in the following aspects: First, it confirms in the form of law that the theory advocated by the theory of "the king is the guide for the ministers, the father is the guide for the son, and the husband is the guide for the wife" The inviolability of the monarchy, patriarchy and husband's power, and violators will be severely punished; secondly, it runs through the spirit of "morality is the main thing, punishment is the supplement" and "punishment and education are obvious". In China, moral punishment has been used as a means of maintaining rule for a long time. After sufficient argumentation by Confucianism in the Han Dynasty, the function, scope of application and interrelationship of moral punishment became clearer. After the Han Dynasty, most rulers adopted "morality as the mainstay, punishment as the supplement" and "punishment as the key link" as the established policy of legislation and justice. Third, prisons were fixed in the Spring and Autumn Period, and civil proceedings were actually adjusted according to etiquette, and Confucian classics were compiled; Fourth, executions were confirmed in the Autumn and Winter periods, thereby institutionalizing the Confucian idea of ??"Heavenly Punishment." Many legal contents, from "quoting scriptures to determine prison terms" and executions in autumn and winter, to the provisions of the "Ten Major Crimes" and the "Eight Recommendations", all use Confucian hierarchical ethical relationships as the standard for conviction or pardon, and have been respected by rulers of all ages. Therefore, including the judicial system, "rituals" are also integrated with it, and the spirit of "penalties and etiquette must be combined" and "rituals and punishments" run through it.
Relatives who bring their juniors to sue their elders, wives, or husbands will be punished with heavy punishment or even death. Otherwise, they will be innocent or given a light sentence. This not only reflects the Confucian emphasis on "propriety", but also reflects the humble status of women in ancient China. It also reflects the inseparable connection between China's judicial system and ethics.
(5) If torture is used to extract a confession, it should be determined based on the crime committed.
Extorting confessions by torture is an extremely barbaric system widely used in handling criminal cases at home and abroad in the Middle Ages. In China, it is also a trial method used by rulers of all dynasties to realize their judicial claims.
In ancient China, oral confessions were generally used as the basis for judging cases. Without a confession, the case cannot be closed. "Plea and repentance" refers to the final judgment of guilt and guilt based on a confession. Therefore, obtaining confessions has become a crucial link in the trial process, and the various tools used to extract confessions through torture are numerous and varied. The parties often feel aggrieved because they cannot bear the pain of flesh and blood.
From the Western Zhou Dynasty, China began to interrogate people, mainly to plunder. During the Qin and Han Dynasties, although torture was not legally found, according to the records of Yunmeng Qin Slips, interrogation had become a legal system in the Qin Dynasty, was widely implemented, and was actually legalized. Emperor Jing of the Han Dynasty stipulated the specifications of torture instruments. During the Northern and Southern Dynasties, torture began to be written into the law. For example, the Liang Dynasty pioneered sentencing (fasting of food and drink), the Chen Dynasty stipulated vertical punishment (locking prisoners in earthen enclosures and whipping, etc.), and the Northern Wei Dynasty stipulated that there was a limit to fifty sticks. The torture mode of the Northern Qi Dynasty became increasingly cruel and was inherited and developed by successive dynasties. The torture was unrestrained, more and more cruel, and was used in every possible way. In the Tang Dynasty, torture was institutionalized, and Tang laws made specific provisions on the objects, conditions, tools, parts of punishment, procedures, and how to implement torture. In addition to legal interrogations, there are also various illegal interrogation methods. Torture was followed and developed by successive dynasties, and was gradually legalized and became a trial system that could be reasonably used in judging cases. Because of this, torture is extremely cruel.
The ancient torture system is linked to the evidence system that emphasizes oral confession and confession. Although ancient litigation also collected and used physical evidence and witness, and paid more attention to on-site inspection, it paid more attention to oral confession, which was the main basis for finalizing the case. Under normal circumstances, no confession can be conclusive, and this emphasis on confession will inevitably lead to torture to extract confessions. Torture to extract confessions is a distorted trial system caused by the trial characteristics of ancient China that emphasized confessions over evidence. It is an extremely cruel method adopted by the ruling class to maintain its rule.
Conclusion
In the course of thousands of years of legal history in China, the judicial system has also experienced historical evolution from simplicity to complexity, from crudeness to refinement, and from barbarism to civilization. In this process of development and evolution, there has been both inheritance and innovation among the judicial systems of each generation. This relationship reflects the civilization process of China's legal system.
The history of ancient China’s judicial system tells us that the judicial system is an important guarantee for the perfect operation of the state machinery, and the construction of the judicial system is also an important factor related to the long-term stability of a country. The experience and lessons of ancient justice always remind us of the importance of strengthening the construction of the judicial system.