Judgment Based On Legal Provisions And Judgment Based On Special Facts In The Judiciary Of The Qing Dynasty

This paper studies the problem of the applicability of law in the judiciary of the Qing Dynasty. To sum up, there are two methods of the applicability of law in the penalty of the Qing Dynasty .They are judgment based on legal provisions and judgment based on special facts. This paper can be divided into four parts, namely, judgment based on legal provisions; judgment based on special facts; the return from judgment based on special facts to judgment based on legal provisions and conclusion and other views.First part, judgment based on legal provisions. Before this process starts, the legal provisions must be strictly interpreted by the judicial officers of the Qing Dynasty .They mainly adopted free interpretation with the supplementary of only natural interpretation, expanded interpretation and system interpretation. Then the judicial officers will judge a case based on law, and such process is called judgment based on legal provisions. There are some notable characteristics in judgment based on legal provisions. Among these characteristics there are: the usage rate of judgment according to legal provisions reaching to 75%,invoking a legal provision, invoking a legal provision as well as invoking a law case to illustrate, judgment based on legal provisions having priority and so on. Judgment based on legal provisions has its deep ideological foundation and complete legal system and reached the highest perfection during the Qing Dynasty.Second part, judgment based on special facts. It is a supplementary to judgment based on legal provisions. And it can be divided into two forms: judgment by referring to examples and judgment against legal provisions. Judgment by referring to examples is a flexible method when there is no suitable legal provision being adopted. And its features are: its usage rate up to about 20%, punishment based on similar legal provisions , increased or decreased punishment based on similar legal provisions and judgment by referring to ready legal case. There is logical component in these features. Judgment by referring to ready legal case has some principles as well as deep ideological foundation and strict legal system.Judgment against legal provision is a flexible method when there is no suitable legal provision for a specific criminal case. The usage rate of this method in the penalty is about 6%.Judgment against legal provisions has various forms. It is adopted in the judiciary of the Qing Dynasty mainly due to the following reasons: the formation of law at the time lacking enough consideration of social relationship; legal system being too perfect; the case being judged is specific and so on. Though the power of judgment against legal provision belong to the emperor alone according to procedure, there existed such phenomenon at all level in practice.The third part: the return from judgment based on special facts to judgment based on legal provisions. There are three situations:?1the regulations of judgment based on special facts are absorbed by state law and these regulations become a part of legal system. When similar case being judged afterwards they can be regarded as judgment based on legal provisions.?2 The regulations of judgment based on special facts are forbidden by state law, and similar case must be decided by legal provisions.?3 The regulations of judgment based on special facts are absorbed by state law and used for a period. Because of the disappear of specific facts, these regulations have to be stopped and the original legal provisions are reused again. This is also a method of the return from judgment against legal provisions to judgment based on legal provisions.The fourth part, related comparison between criminal justice and civil judicature,and disassimilation in legally decision and decision according to conscience in the criminal justice. Under despotic system in the criminal justice ,disassimilation in legally decision and decision according to conscience is inevitable.The fifth part, conclusion and other views. The conclusion of this paper is : in the judiciary of penalty of the Qing Dynasty, judgment based on legal provisions is the principle and the normal form and judgment against legal provisions is an exceptional and supplemental form. The authority of the Qing Dynasty makes every effort to maintain its legal order. Other views are: the logic of legal provisions was concerned in ancient China especially in the Qing Dynasty. The legal system in the judiciary of the Qing Dynasty exerted great influence on the next generations.