Study Of Shenjiaben's Penal Thoughts

Shen Jiaben was a well-known patriotic bureaucrat who was loyal to the Emperor and embraced an ideology of reformation. He knew not only ancient and modern culture, but also Chinese and Western culture. Indeed, he was a master of law at his time. In 1902, in order to save its falling rule and to repeal the notorious extraterritoriality, the Qing Dynasty promulgated an order to implement a "New Deal" , which lifted the curtain of the legal reform in modern China. Shen Jiaben was appointed as one of the Ministers in charge of the Revision of Law. The revision of law started from the reform of the Qing's criminal law. Shen Jiaben argued that "among the various bodies of law, criminal law is the most important." Accordingly, his first reform was focused on the revision of the criminal law. The first step he took was to revise "The Criminal Law of Qing Dynasty" . Above all, he repealed the various cruel and unsual punishments contained in the Law; next, he drafted "The New Criminal Code of Qing Dynasty". The structure and organization of the Code were modeled on the criminal laws of modern Western civil law countries and the biggest progress or achievement made was his introduction into the New Code the ideas and principles of criminal law of modern Western countries such as of "offences stipulated by law" ect. By blending together the traditional idea of benevolent government with the Western penal thoughts, Shen Jiaben's unique ideas came into being, such as his humanitarian idea opposing unusual punishment and cruel law, the idea advocating offences stipulated by law and opposing application of criminal law by analogy, the idea advocating equality in the eyes of law and opposing its different application and the idea of punishment complementary with education and cultivation. His criminal ideas provided the drafting of the Criminal Code of Qing Dynasty with a guide of theory and notion. From then on, the Chinese criminal law was becoming more civilized from savage and backwardness.At the moment, modernization of the Chinese legal system is still under way, among which the modernization of its criminal law intended to crack down crimes and protect human rights has in particular attracted the attention of the whole world. In the rich legal thoughts left by Shen Jiaben to the later generations, his penal thoughts were the most profound, creative and full of spirit of exploration. Therefore, a serious study of his penal thoughts remains both theoretically and practically significant for the modernization of China's criminal law. Based on the previous studies made by other scholars and experts, and using the materials at hand, this thesis analyzed and discussed more comprehensively Shen Jiaben's penal thoughts by applying the historical approach and the comparative approach as well. The whole thesis consisted of five chapters as follows:Chapter One——Historical Background of the Legal Reform in Late Qing Dynasty. In the late years of Qing Dynasty, economically, as the development of commodity economy, the capitalist means of production and relationship gradually came into being. Facing with the newly appeared social economic relationship, the simple and backward feaudal law could not cover whole and appeared to be hopleless. The traditional law alienated from the society and fell into a state of dilemma. Politically, the crupted rule of Qing Dynasty made the contradictions of class struggles more acute. Masses struggles and incurrections occurred over all parts of China. Internationally, the imperialism using the cruel laws of Qing Dynasty as an excuse grabbed extraterriorality, which harmed the judicial sovereignty of the Dynasty. As to the social tide of thoughts, the call for reform became louder and louder. Confronting with such a contingency, Qing Dynasty had to declare ints intention to reform and revise its laws in 1902. In this chapter, the thesis analized from the respective perspective of economy, society and politics as well as law so as to pave the way for the infra analysis and further discussion.Chapter Two——Shen Jiaben' Humanitarian Penal Thought. For thousands of years, the various dynasties overstated the "policy of governing by severe punishment" and held that a severe punishment could lead to a goal of better government of the country and the people. In the Criminal Code of Qing Dynasty there were still provisions on various cruel and unusual punishments. These provisions run against the world trend at the time and were criticized and condemned by the Western people. Shen Jiaben ruthlessly condemned the provisions contained in the feudal criminal law. He accepted the humanitarian thought embodied in the Western penal laws, and with the fusion of his idea with his traditional benevolent thought came into shape his ideas opposing unusual punishment and cruel law, the idea rethinking and reducing of offences carrying with capital punishment and the humanitarian thought of death penalty as the only severe punishment. This chapter was divided into two parts to make a thorough study and analysis.Chapter Three——His ideas on Offences Stipulated by Law. The application of law by analogy was a practice without any change till modern times, coming down from thousands of years of application of ancient criminal laws. This was a system that if the law had no clear provision, the enforcement bodies could apply the most analogous provisions under the law, the most analogous case judged before and precedent to decide the present cases. Though a comparative study of the criminal laws of the various dynasties in ancient China and the penal laws in the West, Shen Jiaben all the more realized the drawbacks of the application of law by analogy and the harms it inflicted. He thought this system was running against the world's trend. The principle of offences stipulated by law represented the trend of development of the legal civilization worldwide. Therefore, after accepting the appointment, Shen Jiaben made a request to the Qing government for the repeal of the system of application of law by analogy. This chapter mainly and in great detail discussed his idea opposing the application of law by analogy, the idea advocating equal application of law, the idea of careful application of law as well as the idea of punishment corresponding to offences committed.Chapter Four——His ideas on All Men Were Equal in the Eyes of Law. Shen Jiaben held that "all men were created equal, law should be applied equally and people should not be divided into various classes." He maintained that in applying law the principles of uniformity and equality should be carried out. He opposed the privileges of certain ethnic groups and advocated equally among all ethnic groups. In particular, he opposed the privileges enjoyed by the Mandarins who could exchange their status for lighter punishment after committing crimes and insisted that law should be equally applied to both Hans and Mandarins. As to the different application of law to different ethnic groups, Shen Jiaben made a severe criticism. This chapter in this thesis mainly analyzed and discussed his opposition to different application of law to different actors and his insistence on the equal application of law regardless of economic and social status and Mans or Hans and men or women.Chapter Five——His ideas on Punishment and Rehabilitation and Education. Shen Jiaben held that the purpose of criminal law was to punish criminals and to educate and to cultivate them. Punishment and education should be complementary with each other. It was through cultivation to prevent crimes and rehabilitate criminals and by means of cultivation to rehabilitate juveniles. This is the last chapter of the thesis in which a thorough discussion was focused on Shen Jiaben's ideas of stressing on the complement of each other of punishment and education.