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The Research On Seven Traditional Chinese Homicides Of Tang Dynasty Laws

Posted on:2012-05-03Degree:DoctorType:Dissertation
Country:ChinaCandidate:X L LiuFull Text:PDF
GTID:1116330332997415Subject:Legal theory
Abstract/Summary:PDF Full Text Request
The Tang Dynasty laws, which integrate the legislation of tales before and opens offspring legislation of its kind, mainly reflect the whole essence of Chinese traditional legal system in the legislative technique, the concept of principle and the cultural concept. At the end of the Qing dynasty, the traditional legal system was gradually fading away under the impact of western civilization, and the Chinese legal system's disintegration began.The great influence of laws and legal system of the Tang dynasty are gradually neglected with the demise of the Oriental culture, but the influence of the traditional system and culture on current society, rule of life still exists. The study of Tang Dynasty laws is of great significance for understanding and reference to the traditional legal system, the entry point of the research on Tang Dynasty laws is a basic and general question."Seven traditional Chinese homicides"in Tang Dynasty laws, even in Chinese traditional laws, is the most representative and the contemporary highest scientific generalization. Taking"Seven traditional Chinese homicides"of the Tang Dynasty laws as research object can conduce to comprehensively analyze the achievements of Tang Dynasty laws, which represent the Chinese traditional law in legislation technique, legal principle, legal concept etc.With the research content as a standard, we can divide the body of the paper into three parts: the specific study, the overall study and the comparative study of Tang's"Seven traditional Chinese homicides". The specific study of the legislation of Tang's"Seven traditional Chinese homicides"includes the second to the sixth chapter of this paper. In this part, I will combine the inherited documents to analyze their formative characteristics, particulars of offence and legal practice in legislation.The overall study of Tang's"Seven traditional Chinese homicides"legislation includes chapter seven and chapter eight. Both of the two put"seven traditional Chinese homicides"as a whole to examine its characteristics and structure. What's the comparative study of legislation of Tang's"seven traditional Chinese homicides"relate to is the similarities and differences of homicide legislation between Tang dynasty and Roman laws. For the two have similar produce time with different historical and cultural backgrounds, and the academia lack for the comparative study of two different relevant systems, the comparison between Tang Dynasty laws and Roman laws in homicide legislation is of great importance for understanding eastern and western legislation technology, legal principle, the concept of legal system and legal culture.This paper is divided into nine chapters.The first chapter: introduction. This chapter details the historical status and characteristics of Tang Dynasty laws , the reason why put"seven traditional Chinese homicides"as the enter point, current situation of study, research subject, research methods and the structure of this paper, and at the same time, presents the innovation and the breakthroughs that may result on the basis of current research achievements.The second chapter:"the research on"murder". Murder is the head of homicide and the heaviest sentence in Tang Dynasty laws, also meaning confused. From the legislation technique, Tang Dynasty laws is divided into two forms of murder: first, the typical form of murder --the collusion"discussion of the two"; second, the modified form of murder—to seek murder alone"the punishment of treating single criminal as the collusion"; under their respective form, the murder based on the existence of special relationship whether exists in the subject of crime and murder object can be divided into general murder and specific murder. The Act of murder according to the behavior results can be divided into three stages: stratagem and did not do it, murder someone but only hurt, murder and kill. Specific act of murder on the conviction and sentencing always in light of other status rather reference to this article, and by the influence of various"general provisions"in"Ming Li", the specific acts of murder's case of conviction and sentencing is quite numerous and jumbled. The third chapter: the research on"intentional homicide"in the Tang Dynasty laws. The meaning of"intention"in"intentional homicide"is"having the evil heart to kill or injury", intentional homicide means one first have the thought, then do the killing. In the legislation, the Tang Dynasty laws distinguish crime from non-crime, this crime from that crime through the definite and negative double enumerations. The sentence of intentional homicide, takes the method of four stages combined: generalization, definite enumeration, the comparison of punishment and degree comparison. In definite enumeration and comparison of punishment, both of them can be divided into two sorts according to the existence of relationship between the criminal and the sufferer. The provisions also stipulate the particular case which is applied to the sentence of intentional homicide. There is no clear distinction between intentional homicide and murder in the legislation, so the misunderstandings occurred in the juristic practice existed until the late Qing Dynasty.The fourth chapter: the research on"homicide during robbery"in the Tang Dynasty Law. The fixed and systematic use of"homicide during robbery"can be traced back to Han Fei Zi, in which it indicates the regicide. From Han Dynasty to Tang Dynasty,"homicide during robbery"has four fixed using. The meaning of"homicide during robbery"can be summarized as"rob properties and kill people". The"homicide during robbery"in the Tang Dynasty laws wasn't an independent accusation, but serious nature of insurgence, plunder prisoner, trafficked people, bandit. They were all stated definitely in the law. As an independent crime pattern,"homicide during robbery"has differences with these basic crimes in the formal of the subjective aspect, crime target, crime conduct, corporate crime."Homicide during robbery"is a complete crime unit in the Tang Dynasty laws, but it can not be definitely independent of the basic crime. According to the existed documents, it can be seen that"homicide during robbery"is an ordinary crime in the Tang Dynasty laws, especially in the unrest. And, most of the cases were recorded as subordinate to the political incident. The legislator had paid great attention to it, but the precise and appropriate legislation hadn't completely carried out in the judicial practice. The fifth chapter: the research on"fighting to kill"of the Tang Dynasty Laws. Fighting to kill in Tang Dynasty laws can be summarized as being killed because of fights and beats. fights and beats are two consecutive stages in injure behaviors. The Tang Dynasty laws have concrete provisions of timing conditions, the use of guilty tools, and the judgment of physical situation in fighting to kill. The crime form of fighting to kill is indirect intent. The monumental documents of Tang Dynasty have little records on cases of fighting to kill, while the historical data of Song Dynasty have kept some account of legislation and judicature in fighting to kill. Through these documents, we can see that fighting to kill is a kind of Felony which can't be forgiven. But, in legal practice, it's hard to tell fighting to kill from the crimes alike.The sixth chapter: the research on"homicide because of joking","homicide by mistake"and"manslaughter"."Homicide because of joking","homicide by mistake"and"manslaughter"were murder crimes with weaker subjective culpability. In the Tang legislation of guilty of murder, the actor does not chase for the death of the victim subjectively. They have not foreseen their behavior would cause the death of other people, except part of activities in"homicide because of joking". From the provision, we can find that most of their fundamental ordains are enumerated in"Ming Li"which is distinct from the legislation of murder, intentional homicide and homicide during fighting in Tang Dynasty laws. Meanwhile, the majority of their concrete crime and punishment rely on homicide during fighting, others on intentional homicide. There was almost no provision that has independent enumeration of guilt. With the view of traditional laws coming down in one continuous line, the same provision about homicide because of joking, homicide by mistake and manslaughter in Ming Dynasty laws demonstrated the similarity in legislation of the three crimes.The seventh chapter: the differences of"ten evils"in the Tang's legislation of"Seven traditional Chinese homicides". Kai Huang law of Sui Dynasty initiated"ten evils", whose content was derived from"Qi Dynasty law", and form from the diction"ten sins"of Buddhism. And this institution didn't change until Tang Dynasty. Rebellion, crimen laesae and treason felony are concrete accusation in"ten evils"of the Tang Dynasty, but murdering of senior kin, immorality, irreverence, impiety, inharmony, perfidy, internal disturbance all contain several charges. In the legislation of Tang"Seven traditional Chinese homicides", some concrete charges of murder, intentional homicide, homicide during robbery, homicide during fighting were taken as parts of"ten evils", which were considered as serious violation to courtesy, deprivation of feudal moral and destruction of feudal order. Beside legal punishment, these charges would also have additional penalty. Therefore, homicide because of joking, homicide by mistake and manslaughter hadn't been brought into"ten evils", which can be regarded as manifestation of"punish intentional crime severely and negligent offence lightly"of Tang's legislation. In Tang Dynasty laws, six of"ten evils"contained concrete guilt of"seven traditional Chinese homicides". They are treason felony, murdering of senior kin, immorality, irreverence, inharmony, perfidy. Through this, it can be seen that homicide had infringed ruling order of feudalism and feudal order of seniority in human relationships, and great importance the ruler and the legislator attached to them.The eighth chapter: the internal structure of the legislation of Tang's seven traditional Chinese homicides. The legislation of seven traditional Chinese homicides was classified according to the form of culpability and criminal intent of the actor. This classification obviously reflected"the intention ental theory". All forms of the negligent crimes reflected their subordinate characteristics in the legislation, for when the law wants to condemn and sentence the criminal; it should refer to the intentional crimes of similarity. Specifically, intentional homicide is the core of murder, homicide during robbery and homicide during fighting in legislation; murder, intentional homicide, homicide during robbery and homicide during fighting are the core of homicide because of joking, homicide by mistake and manslaughter.The ninth chapter: the comparative study on the Murder crime legislations in Tang Dynasty and Roman. Murder crime legislations in the Tang Dynasty Law and Roman law differ in two aspects, that is, the legislation system and the concept of law: from the aspect of legislation system, the Roman law has enumerations alone and no systematic stipulation in the concrete crime punishment and the concept of legality. The Tang Dynasty Laws also has objective concrete enumerations in legislation system, but the code structure has already divided into two parts: profile and special provisions. Simultaneously, the contents of certain enumerations have echoes with each other. The meticulous discussion of Chinese tradition law, represented by Tang Dynasty Laws, on the inner link of the code relations, articles and spirit of law are rare contemporarily. From the concept of legality, Tang Dynasty Laws has strict maintenance to the hierarchy and the order of patriarchal system. Roman law is unable to compare with Tang Dynasty Laws in this aspect, and Tang Dynasty Laws manifests deeper legislative theory and particularity through protecting the hierarchy and patriarchal order.Through the concrete, overall and contrast inspection to the legislation of the"Seven traditional Chinese homicides"in the Tang Dynasty Laws, we can draw the conclusion that the legislation of the"Seven traditional Chinese homicides"in the Tang Dynasty Law has its own characteristics and emphasis. There is no question that its accomplishments on the legislative technique, the principle of law and legal concept represented the peak of the Chinese traditional law study. But through the inspection to the operation of the legal rules and judicial practice, the superiority and precise of the Tang Dynasty Laws had not limited the government officials in all previous dynasties misusing the law can be found. This is also the destiny of the legal system in the Chinese traditional society.
Keywords/Search Tags:TangLvShuYi, Seven traditional Chinese homicides, Relations between the crime and penalty, Legal practice
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