A Study On The Reform Of Law In The Late Qing Dynasty And The Modernization Of Chinese Criminal Law

The reform and modification of laws is called the unprecedented Great changes,The historiography circle and law circle so called reforms and modification of laws in the late Qing Dynasty, There are two reasons: On the one hand is because it destroyed the Chinese legal system of thousands of years of history,transplant the continental law system. On the others hand, because it created a precedent for the modernization Chinese law. Because the Chinese legal system was broken in a short time, the criminal law of continental law system is transplanted in haste. Coupled with the modification of law is completed in the Qing Dynasty foreign aggression ridden and precarious background. The reform and modification of laws is creating a precedent for the modernization of Chinese criminal law, As a modification of law the important achievements, "Imperial Qing criminal law" also exist many problems.. There fore, in the reform and modification of laws have been a hundred years later, In the continental law system in our country’s practice operation have been a hundred years later, we look back the reform of criminal law of the end of the Qing dynasty, we summary pros and cons of criminal law in the late Qing Dynasty change,, consideration the development of contemporary China’s criminal law, we probe modernization of the path for the future of China’s Criminal Law and this will have a positive practical significance.The introduction part mainly introduced for what reason study on reform and modification of law and modernization of criminal law, the present situation of academic research, the framework of the dissertation, in the research process the matters that need to be explained.In order to better understand and explain the phenomena and problems that appeared in the late Qing Dynasty criminal law reform, The first chapter briefly describes the reform and modification of laws historical background about that, the historical background is divided into international and domestic background are introduced briefly. About the international background from three aspects were introduced, the international economic background mainly introduced the process that nation of the industrial revolution. The industrial revolution not only make the UK, France, Germany and other country of economic strength and military strength to increase, provides material conditions for the Western powers plundered Chinese and world, but also laid the economic foundation that the bourgeois revolution of European and American countries. In the bourgeois economic basis decision and the inherent requirements under, Europe and the United States occurred in the bourgeois revolution. The international political background, briefly introduces the main country of bourgeois revolution and Reform. After the completion of bourgeois revolution, Powers for China exist advantages not only in economic strength, military strength, but also their country the capitalist social system is superior to the Qing Dynasty the feudal autocratic system. Part of the superior system is not only a part of the strength powers aggression Chinese, but also it is powers Countries output to the Chinese civilization conditions. At the same time, the comparative advantage of powers countries system has attracted the government and people of Qing Dynasty, in order to survival the ruling and opposition parties requirements learn to powers country and reform, the final push the new policy of late Qing Dynasty and the modification of law, this is the third part of the contents of the international background. The domestic background of the reform and modification of laws can be divided into: the domestic political background, economic background, ideological and cultural background, legal education and other related background. Each part of the background and content, the general from 1840 year the first Opium war began to introduce, by 1911 "imperial Qing criminal law" promulgated.The second chapter briefly introduces the reform of criminal law’s process,demonstrates the reform and modification of laws is Chinese modernization of criminal law of begin and milepost. The first part mainly introduces and demonstrates Chinese modernization of criminal law origin and purpose, Pointed out that the main purpose of the reform and modification of laws is the Qing government plans to reform national salvation through, Instead of Shen Jiaben and other legal drafting rights issues advocates retract consular judge, Demonstrates the retract consular jurisdiction problem is not the qing government’s claim,it is Shen Jiaben and other legal drafters bootstrap flag,Later scholars think that back extraterritoriality issues is reform of late Qing Dynasty law has its beginning, this is biased. The second part of this chapter content is the relation that both the new policies in the late Qing Dynasty and Chinese modernization of criminal law. The new deal has very complicated contents, It includes the preparation for constitutionalism, bureaucratic reform, modification of law etc. almost involved in all aspects of the country’s social transformation. The reform and modification of law is not only the reform of criminal law, also includes creation of commercial law and other legal. This part briefly introduces the relationship between the new policy of late Qing Dynasty and late of the Qing Dynasty law revision, introduces the relationship between Chinese modernization of criminal law and the reform and modification of laws, For a better study of criminal law in the late Qing Dynasty change and the China’s modernization of criminal law do some foreshadowing. The third part of this chapter is briefly introduces the process of criminal law reform in the late qing dynasty, It is divided into four stages: The small revision stage, The big revision stage,“The current criminal law ”episode, "Imperial Qing criminal law" promulgated. Respectively introduced the specific content of the four stage. In order to we may for the comprehensive understanding of the criminal law reform process.The third chapter is the key part of the article. as the saying goes: not afraid do not know, afraid of goods than goods. The method of comparative study, in the field of legal research use were also very much. By using the method of comparison, compare the two criminal code of with the relevant rules and norms, to find their similarities and differences and their respective advantages and disadvantages from, it is found that the pros and cons of criminal law reform in the late Qing Dynasty, to find a feasible path, this is an important point of the thesis is different from other research articles. Let the conclusion of the study based on the basis of the system standard contrast, Let the conclusion of the study based on the basis of the system standard contrast, It hopes that through comparative study, Strive to make my own study provide some reference for the later legislation. If hoping comparative study was very fruitful to smooth, one of the key is choice comparative items. In order to select the comparative items, the author adopt on comparative method of functionalism principles of comparative law. Comparison of functionalism is extracted feature the same things compared. Comparative item is selected with comparable. The author uses this principle, study "Qing law" and "Imperial Qing criminal law", and select murder crime, crime of adultery, bribery, judicial official crime criminal law as comparative items. These Specifications have stipulated in "Qing law" and "Imperial Qing criminal law", these Specifications not only has the same sex, and there is a lot of different. They are conducive to comparative study, this is one of the reasons, in order to comparison these specification is selected. The author chooses another reason these Specification comparison, these is specification a matter of national, social life order, but also these system still exists in the social life today, these is researched that has practical significance.Through the comparative study of the provisions of two important Penal code specification, summary demonstrates "Qing law" and "Imperial Qing criminal law" advantages and disadvantages. Mainly include: a comparative study of the regulations of bribery crime, a comparative study of the provisions of the crime of homicide, a comparative study of the crime of adultery, a comparative study of the provisions of the judicial officials crime, a comparative study of the system of punishment, etc. In a comparative study of the regulations of bribery crime, the main research: compared with the "Imperial Qing criminal law" about bribery provisions, "Qing law" Provisions criminal network is tight, "Qing law" fine distinguish of sentencing,these excellent legislative technology is be destroyed on one day; "Imperial Qing criminal law" loss balance of human feelings and national law; "Imperial Qing criminal law" for a criminal suspected of indulgence etc. And take Japan on the revision of the legislation of the bribery crime example, it demonstrates the "imperial Qing criminal law" deficiencies. About comparative study of the provisions of the crime of homicide, the main research: "Qing law" for the homicide to distinguish subtle; "Imperial Qing criminal law" legislation on homicide crime Simple and complicated is improper; "Imperial Qing criminal law" the legislative defects about killing crime is the most lack of interoperability; "Imperial Qing criminal law" set up dueling crime seriously divorced from reality; "Imperial Qing criminal law" abandoned Bogus system is Chinese legislative resources a great loss etc.; Summarizes the "Imperial Qing criminal law" about homicide legislation advanced place. About comparative study of the crime of adultery, the main research: about the rapist, "Qing law" set penalty overweight, "Imperial Qing criminal law" a punishment too light; "Imperial Qing criminal law" abandonee sodomy crime is a big mistake; "Imperial Qing criminal law" to set up "Incest" crime is the ethic faction to keep results. Legislative drafting eager to abandoned incest crime, at that time not only to Germany, America etc countries in the penal code have, even today, still holding on, later Britain incest crime into law; Because the fear is foreign accused, No husband adultery be included in the provisional regulations; Summarize the "Imperial Qing criminal law" about the crime of adultery chapter is legislation advanced place. A comparative study of the provisions of the judicial official crime, Main argument: "Qing law" Provisions criminal network is tight, "Imperial Qing criminal law" is simple, it is not enough to regulate judicial officials; "Criminal law of Qing Dynasty" abandoned the prevention of miscarriages of justice "the inmates take defense" system is a big loss of legislative resources. A comparative study of the system of penalty, mainly studied the process, content, characteristics about penalty change.The fourth chapter is another focus of this paper. In this chapter, based on the previous chapter, further summarizes the pros and cons of the reform of criminal law. About the Qing Dynasty criminal law modernization achievements, this paper summarizes the main arguments about several aspects: Torture was abandoned, torture toextract confessions are prohibited; Privileges were abandoned, Master and slave become equality; the establishment of the principle of legality; in modern women’s status was improvements. Due to the other three questions, Scholars have been mentioned and demonstration, this paper carrys on the simple argumentation. About improve the problem of modern women’s status, The author gives a detailed demonstration, Mainly include the following contents: Think that women are inferior to men of the feudal patriarchal ideology exist in ancient China; in the " Qing law " a lot of rules to women is unequal; "Imperial Qing criminal law" has provided a guarantee for the advancement of women; At the end of the Qing Dynasty criminal law reform about the improvement of women’s status is meaningful etc.In the late Qing Dynasty the modernization of criminal law has defects. Mainly from Jurisprudence faction themselves the loss of Legislative sovereignty, Jurisprudence faction was rash advance legislation, blindly follow the legislative language of japan, the improper allocation of resources of the legislation etc. several aspects of the summary argument. Jurisprudence faction blindly raises the age of criminal responsibility, if criminals do not know law, must reduce the penalty etc provisions of rash advance legislation; Despite many Reviewers criticize draft law, keep The Japanese words was written into the code of law; for the so-called problem to recover the consular jurisdiction, Blindly copy foreign criminal law, The judicial power is not recovered, But losing the legislative initiative etc. At the end of this chapter, a problem demonstrates that "Imperial Qing criminal law" legislative improper resource allocation problem. The resources of legislation is a kind of social resources, and it is a kind of rare and authoritative resources, therefore, proper allocation of legislative resources is a necessary requirement for the drafting of laws and law makers. The research found that "Imperial Qing criminal law" has the legislation improper resource allocation problems, The author has carried out demonstration from five aspects, specific include: Should write into penal code not written, Should not write into penal code is written, Should be simple but is complicated, The legal provisions very complex, should be very simple, many law is for make up the number etc.The fifth chapter mainly expounds the historical enlightenment about Chinese modernization of criminal law. This chapter from the "criminal law of Qing Dynasty" the drafters Dong Kang confession and regression begin, combined with the above chapter argument, get the following revelation: National legislation should cautious choose the legislative drafting people, Learn from foreign legislation to truly achieve mastery,Shouldn’t be too high to evaluation of law reform of late Qing Dynasty. In the end, the author puts forward the reconstruction of The Chinese legal system. The Chinese legal system as an ancient legal system, Inheriting the millennium, deep influence over Korea, Japan, Vietnam and other countries, Former glory can compare to any other law system. The reform and modification of laws because blindly imitate the continental law system, make Chinese legal system be destroyed on one day. The reform and modification of laws, the fine traditions of the Chinese law inherent in is all abandoned, for comply with the law by people, failed to create a good law. During the Republic of china, on the rise of the reconstruction of Chinese legal system boom, The KMT elder juzheng have proposed the reconstruction of Chinese legal system theory. Based on the theory above, on why rebuild Chinese legal system is demonstrated, argument focus on the following aspects: The continental law system exists defects that can’t be overcome, The Chinese legal system has advantage of both civil law and common law, The world competition and national renaissance needs, The rule of law must have good laws, third questions in this section, The construction of Chinese legal system is discussed in detail. Then,puts forward how to reconstruction The Chinese legal system and suggestions, the suggestions of the author’s ideas include the following contents,1、can be used in the general provisions of the criminal law of the continental law system. 2 about specific provisions of criminal law,learn from the ancient China legislative wisdom, For the common, frequently occurring crime, For accurate and detailed legislation. 3 the reconstruction of Chinese law system requires to our country’s current judicial interpretation system finishing, not only the judicial interpretation should finishing, but also should in the form of legislation included in the penal code, In order to realize the real principle of legality. 4 the reconstruction of Chinese legal system need achieve mastery, must avoid repeating once appeared in our legislative history to copy the Japanese criminal law and copying the Soviet phenomenon. 5 Restore our legislative tradition that strict to administration of government officials, it is the key location in the reconstruction of Chinese legal system.All in all, We summarize the gains and losses about the process of modernization of criminal law,fully exploit the resources of the Chinese law system legislation that is flooded once glorious, make the excellent Historical tradition and the reality of society need to combine, make the nationality and the world merge, accompany with the great rejuvenation of the Chinese nation the pace of the times, reshape the brilliant Chinese legal system, for the rule of good law to contribute modest force, these are the purpose of writing this paper, also are as a legal men duty bound responsibility.