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The Legal System Changes, After The Song Dynasty Yuan Harvest

Posted on:2009-10-08Degree:DoctorType:Dissertation
Country:ChinaCandidate:Z X LvFull Text:PDF
GTID:1116360248951053Subject:Legal history
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Legal system,a concept of modern legal science,is an organic united integration which is made up of different legal branches which are classified and composed by all existing law specifications of one nation.As for Chinese ancient law,there is no clear division among law departments such as criminal law,civil law,administritive law, procedure law and so on,therefore the legal system in ancient China is an organic united integration which is not formed by different legal departments but as a whole formed by all kinds of legal forms with special department laws characteristic.During the early period of North Song dynasty,with inheriting and adopting legal system of mid-Tang dynasty and Wu-Dai,the change of economic relationship of social class and political system,the content and form of Song dynasty legal system are also changed.By the time of Shenzongyuanfeng period,the government make legislation reform,thus the characteristic and function of all legal forms which composed the legal system also changed.Along with this,the legislation mode and structure of code changed, too,then they developed into a new legal system with its own characteristic.By the period of South Song dynasty,the new legal system of Song dynasty was on the way of making itself perfect.Compared with the former times,the legal system after the Yuanfeng Period of Song dynasty changed greatly,which has new characteristics.Whereas,the academic circle didn't pay enough attention to it and the study of the legal system after the Yuanfeng Period of Song dynasty was weak comparatively.As for all these,with reference to the mid-Tang and Wu-Dai'study,this article will do some studies on the basic problems which connected with the change and relevant characteristics of the new legal system after the Yuanfeng Period of Song dynasty.The whole article composes of perfaee,body and conclusion.The body part includes six chapters.CharpterⅠThe formation of revising and compiling of the law and the new legal system.Firstly,this chapter will sort out legislation of Song dynasty and make it as the basis of the whole article which will divide the legislation activity of Song dynasty into five periods,then will make a brief narrative of the legislation characteristics of different periods.As to the main law of every period,the article will present them by tables and mark the the contents and charateristic of law.Based on this,the essay will conserve the legislation changes of Song dynasty and the formation of the new legal system.In this essay,the history of the legal system development and change of Song dynasty will divide into five stages which are inheriting stage,the sprouting stage,forming stage,consolidating stage and perfecting stage.The inheriting stage covers Taizu and Taizong period.During this stage a comparatively systematic legal system which includes Song XingTong(宋刑统),several(Bian)chis(编敕),Chunhua Ling(淳化令),Chunhua Shi(淳化式)was formulated by the Song government,but this legal system did not have its own charateristic for it mainly inherits Middle Tang and Wu-Dai legal system and contents.From Zhen zong to Shen zong-Xining period,it belongs to the sprouting stage. Though the government still adopts legal form and legislation mode of Song dynasty,many factors of the legal system are changing little by little.For example,the compiling and catalogue structure of(Bian) chi(编敕) have changed and begans to distinguish the national widely used "HaiXingBianChi"(海行编敕)from "-Si-Wu-Lu-Zhou-Xian"(Bian) chi(-司-务-路-州-县)(编敕)(which applies to certain department or region.The "Hai Xing(Bian) Chi"(海行编敕) is divided into twelve departments.The development of department law property of(Bian) Chi(编敕) leads to two directions which were criminal law specificaton and non-criminal systematic law specificaton.The contents and forms of presentation of "Ling"(令),"Shi"(式) also changed,and the government begins to formulate separate "Ling"(令),"Shi"(式).The formation period begins from the last stage of Shenzong-Xining to the period of Yuanfeng.During this period,Song government have reformed the legal system and the new legal system with its own characteristic was formed.Its marks are as follows:firstly, Shenzong has reformulated(Bian) Chi(编敕),ling(令),ge(格),shi(式),so the natures and foundations of the four kinds of legal forms had changed a lot.Secondly,the legislation mode has changed,too.Making the modification and supplement of lv(律),ling(令),ge(格),shi(式) into revising them directly and simultaneously,codify the comprehensive lv,ling,ge,shi code.Thirdly,the compiling of Xingmingduanli(刑名断例)so as to make up the deficiency of the statute.The period of consolidation is from Zhezong to Xiaozong-Qiandao.In the early years of Zhezong,When Sima Guang and other persons who were against the reformation in Shenzong Period were in power,they abolished and changed the legislation mode and major codes of Yuanfeng period.When Zhenzong rose to authority,he restored the legislation mode of Yuanfeng period.In the period of Huizong,laws were formulated according to this legislation mode compeletly.When Gaozong came to the throne,the government adopted the legislation mode of Yuanfeng period and continued it to South Song dynasty,and the legal mode was lasted to South Song dynasty.And the mode has not been changed until the early years of Xiaozong.Therefore,the new legal system and legislation mode that formed in Shenzong Yuanfeng period had been consolidated.Perfection period is from Xiaozong-Chunxi later years to the end of Song dynasty. The main mark was that the formulation and use of compiling structure of Tiaofazonglei(条法总类),tiaofashilei(条法事类) which compiled separately by(bian)chi,ling,ge,shi.The legal structure takes the advantages of(bian)chi,ling,ge,shi code so that it was more reasonable.The new point in the essay is that Song dynasty has new legal system with own character which is formulated during the Shenzong yuanfeng period and new legal system develops and perfects further after South Song Xiaozong-chunxi period.The second and third chapter the nature and changes of all kinds of legal form (above,below).The ancient Chinese legal system consists of all kinds of legal forms with specific department law property.In the chapter,we will narrate the natures,status and changes of the legal forms which including lv,ling,ge,shi,(bian)chi,zhi(制),chi(敕),xuan(宣)y,ubi(御笔),shenming(申明),li(令),etc,which composes legal system of Song dynasty and makes discrimination to some relevant problems.Lv(律),mainly refers to the criminal legal specifications.(Because some law documents regulate completely the content of civil law,administrative law,and procedure law).Although the Song Xing Tong(宋刑统) had been revised for many times from North Song dynasty to South Song dynasty,the law documents had been revised rarely.The nature and content of the lv had not been changed basically and it had strongest stability and had the highest status.Ling(令),basically refers to the positive institutional legal specification(if it is seen from the perspective of connection with "be against order" law,it trends to criminal laws). When Shenzong-yuanfeng changed the mode and reconstructed laws,the nature of ling had not been changed,but its content volume had changed,and its compiling system and legal mode had been changed,too.Although,ling was often changed,yet its status is similar to lv because its content is related to the regulation of national basic system.(bian) chi(编敕),before Yuanfeng period,it is a kind of comprehensive law specification,can modify and supplement lv,ling,shi,and the nature of the latters depends on the former correspondingly.Alter Yuanfeng period,(bian)chi became criminal law specification,it can only modify and supplement lv,the function of it changed and led to the change of the legislation mode of Song dynasty,too.Ge,before Shenzongyuanfeng period,the nature of it is similar to the(bian)chi's,but after this period it became the ling's quantization detailed rules.After Yuanfeng,ges are all administrative law specifications rather shange(赏格).Shi,before Yuanfeng period is the implementing detailed rules of ling, but after that it became the format of official document in the process of implememting ling. Both ge,shi have certain corresponding relations to ling,they are underordiate law of the latter,The status of ge,shi is quite equal.(bian) chi and ge,shi revised and compiled at the same time,they have the same level of stability,therefore the status' of them are equal quite equal,too.Zhi(制),chi(敕),Xuan(宣) and Yubi(御笔) are all the concrete forms of emperor's order and they have the same legal effects.They are all the most important legislation form which used in Song dynasty most usually.As for the nature of department law,Zhi,chi and Yubi are comprehensive legislation form which can be involved in all kinds of law aspects, execpt xuan is used as military administrative law.The main difference between zhi,chi,xuan and yubi lies in the promulgating departments and the enacting procures.Zhi,chi are promugated by Zhongshumen,and xuan is promulgated by Shumiyuan,the procure is very strict.Yubi was approved and promulgated by the emperor directly without checking and approving by Zhongshu or Shumiyuan,the procedure is simple and convenient,but is exploited easily by fatuous emperor and treacherous courtiers for seeking private interests. There are a few problems need to differentiate and analyze which related to zhi and chi. Sheshu(赦书)and Deyin(德音) are the concrete appliance of zhishu(制书) rather than the concrete form of the emperor command.Neixiang(内降) is the command which gave some intimate perons special interests by the emperor who going agaist the national policy and the laws,the emperor himself may deny it after the event.The departmet of Tai and Jian can present a memorial,but the administrative department has power to non-execute it, so it is not a form of emperor command and even not the form of law.Conducting is one of the emperor commands,but among the laws of Song dynasty there is not this law form.The commend is the order of the emperor,while there is not the form of commend in the literature of law in Song dynasty.Due to the conducting appeares mainly by the third person,so it is the general pronoun or reference,instead of the concrete form of the command of the emperor.Zhisheduzui(制敕断罪) is not the same thing of zhi and she.It is the the particular treatment of the emperor to some law cases in special situation,mainly about the cases of judging the criminal,because this kind of cases are not accord with the rule of the law and cannot take as the gist of other similar criminal cases afterwards,but just as consult to them.However,zhi and she as the positive law,have the normalized content and are provided with the effort of the general law;besides,if they not conflict with the new zhi and she in the follow dynasty,their legal effort will persist to the last.Shenming(申明) has two forms:shenmingxingtong(申明刑统) and shengmingshe(申明敕).Shenmingxingtong is a very importment form to modify the xingtong(the literature of the criminal law) of the middle and anaphase of the Song dynasty,which is the complementarity,explain or declarition of the content of the songxingtong(宋刑统)(the general criminal law of the Song dynasty) in the form of declarition;while shenmingshe is the complementarity,explain or declarition to lv,she,ling,ge,shi,in the form of zhi and she,and it is the main form of the legal explanation in the middle and anaphase of the Song dynasty.Since the shenming appeared mainly in the form of zhi and she,it has the equal status with zhi and she at the legal field.Li(例),sometimes it refers to legal principle or rule,sometimes it is consult for somebody to somethings,and the later is its word meaning.In the literature of law of the Song dynasty,there are a lot of aspects in relation with Li,and all of them has specifical meaning respectively.In the regimentation,Li has a lot of categroies:precedent, convention,common practice,good practice,fragmented practice,compiled practice. Among these classifications,DuanLi(断例) is the selection of these criminal cases,which the emperor has been dealed with purposely,such as "the cases that can not be forgiven by law,but are reasonable","the cases that have ever been condemned by the execution department of the central government" and "the cases that are unlawful but reasonable,or that of lawful but unreasonable".Moreover,DuanLi can be divided into the categories of XingmingDuanLi(刑名断例),TeZhi DuanLi(特旨断例),Published Li(颁于天下之例), Xingbu Dalisi Li(刑部大理寺检用之例).However,Xingming DuanLi" and Published Li are mostly corresponding with each other.They have the quality of precedent and case and play the role of complementing to the statutory law;while TeZhi DuanLi(and Xingbu Dalisi Li are almost harmony with each other,and they work as reference in dealing with some special cases.Li belongs to the comprehensive legal rule,and the applied principle of these Li,which have the quality of case and custom is the cases that law is not functional,Li proves to be useful.Comparing with the statutory law,Li was merely to play a supporting role,so it is in the lowest position in the legal system.The new points putting forward in those two charpters includes:(1) Lv(律) is mainly criminal law specification,the level of stability is strongest and the stutas is also highest.(2) Basically,Ling(令) is positive law specification,its nature did not changed after Yuanfeng period,but the amount of content changed and the compiling structure and legislation mode thus follow it.(3) After Yuanfeng,(bian)chi(编敕) became criminal law specification can only modify and supplement the law,the function of(bian)chi changed thus led to the legislation mode of Song dynasty changed,too.(4) Ge(格) became the quantization detailed rules of ling(令) after Yuanfeng period.(5) After Yuanfeng shi became the format of official document in the process of implememting ling.(6) Yubishouzhao(御笔手诏) is the concrete form of the emperor command of Song dynasty and has legal force and effect.(7) Sheshu(赦书) and Deyin(德音) are the concrete appliance of zhishu(制书) rather than the concrete form of the emperor command.(8)Neixiang(内降)is not the form of the empheror command and even not the law form.(9)Conducting is the general pronoun of emperor command rather that the concrete form of emperor command.(10) Zhichiduanzui(制敕断罪)is not the same thing as zhi(制),chi(敕).Zhichiduanzui refers the cases of tezhiduanzui(特赦断罪),and it is one kind of li,can not be used as the basis of hadling the following similar cases,at most can be seen as references.But Zhi(制),chi(敕) are statutes,have normative content and popular law force and efficiency.(11) Only xingmingduanli(刑名断例) is precedence among duanli(断例),tezhiduanli(特旨断例)is only the reference to handle the difficult cases.ChapterⅣRelationship and change of legal form.The relationship between the forms of the law system of the Song dynasty could be devided into Ling(令),Ge(格),Shi(式), Ling and Ge,Shi,Lv(律),Zhi(制),Chi(敕) and so on.Lv,(bian)Chi,Ling,Ge,Shi,Zhi and Chi,etc.and five groups.The relationship between Lv,Ling,Ge and Shi:there are a lot of indictments of some crimes should be complemented by the content of Ling,Ge and Shi;while the legal compulsory force of the Ling,Ge and Shi should be guaranteed by Lv.The relationship between Ling and Ge,Shi:the years before Shenzhong Yuanfeng, Ling is the rule of the basic system of the state's excepting the criminal law;Shi is the provision rule of Ling;while Ge is the complementary or amendment to Ling and Shi.After the year of Yuanfeng,the nature of Ge and Shi changed a lot,Ge becomes the provision rule of Ling;Shi becames the official program,actually it is the format requirs such as the form, the petition and the membership account,which should be filled when executing Ling. Firstly,the three should be corresponding witn each other at the attribution of the department law,that is to say they should belong to non-criminal and non-system law. Secondly,the corresponding relationship of the basic form between Ge,Ling and Shi:Ling is the core in three of them;it is the main law,and it is the leader of Ge and Shi.Ge and Ling are the demands or specific provisions to Ling in different aspects;they are auxiliary law of Ling.The relationship between Lv,Ling,Ge,Shi and Zhi,(bian)Chi:in the years before Shenzhong Yuanfeng,Lv,Ling,Ge,Shi are the general law,or we can say the updated law of the Song dynasty;while(bian)Chi is the special law,or new law;(bian)Chi could be complementary or amending to Lv,Ling,Ge and Shi,and its character depends on the law which need to be complemented or amended.Later,(bian)Chi became the rule of the criminal law,and it could only play the rule of amending or complementing to the law.In academic field,academicians had extensive discussions on the relationship of(bian) Chi and Lv of Song dynasty.vAll of dicussions,the implemention of Lv has been basically clarify the issue after Shenzong,but the internal and organic relations of(bian) Chi and Lv remain unclear.If by the relationship of the general law,the former law the special law and after law to understand the relationship between the"relationship of(bian)Chi and Lv", everything can be solved.The relationship between Lv,(bian)Chi,Ling,Ge,Shi and Zhi,Chi and so on includes two aspects:First,they have relationship of general law,the former law and the special law and after law.If(bian)Chi,Ling,Ge,Shi and subsequent Zhi,Chi promulgated have conflict,priority should be given to application of Zhi,Chi and so on.Second,materials of (bian)Chi,Ling,Ge,Shi are based on Zhi,Chi.But the relationship between Lv,(bian)Chi,Ling,Ge,Shi and Zhi,Chi and so on is slightly different.This was reflected in what formulation of Zhi,Chi must not violate the basic principle and spirit.The relationship of Lv,(bian)Chi,Ling,Ge,Shi,Zhi,Chi and so on and Li:Li adds the lack of law,but it must not voilate Lv;Li has certain constraints role in the creation of new Zhi aspects.In the Song dynasty,(bian)Chi,Ling,Ge,Shi,Zhi,Chi,Li and other legal form has formed organic link system.he new points of this chapter are:(1) The relation between Lv and(bian)Chi is the relation between universial law and special law or the original law and latter law.If the two laws conflict,should give priority to the special law and latter law,namely(bian)Chi.(2) The relation between Lv and Zhi,Chi is also the relation between universial law and special law or the original law and latter law,but the formulation of Zhi,Chican not go against the spirit of Lv.ChapterⅤThe change of the structure of code and its characteristic.During early and mid-Song dynasty,the stucture and catalogue of Xingtong,Ling,Shi is the same as Tang dynasty's.In Zhenzong years,(bian)Chi was divided into 12 branches in accordance with Lv's catalogue.After Renzong,there appeared a seperated Ling;Before Yingzong and Shenzong period,the government compiled a large number of seperated Shi.At the same time,the Shi andGe are named by the titles of 24 divisions which be subordinated to 6 departments of central authority,which transfers to the way herein the catalogues is named by the classification which regulates the affairs.Compared with the Tang dynasty and the early and mid-North Song dynasty,structure and catalogue,title of Ling,Ge,Shi of Song Dynasty had changed largely after Shenzong Yuanfeng period.Firstly,since the formulation of Yuanfeng(bian)ChiLingGeShi till the South Song,the government of Song dynasty adopted the structure of combining codification with(bian)Chi,Ling,Ge,Shi and other law forms Secondly,the number of volumes of Ling,Ge,Shi was more than the Tang dynasty's.Thirdly,the catalogues and titles of Ling,Ge,Shi had changed greatly.From Shenzong Yuanfeng Years to Xiaozong Qiandao period of the South Song dynasty,classification,catalogue and titles of Ling,Ge,Shi of Song dynasty was disordered comparatively:"classifying all the crimes in position, compiling in proper chapter,taking restrain as Ling,taking Xingming as Chi,taking rewards as Ge,regardless of the classification".It was not convenient to consult.In Xiaozong Chun Yi period,the codification of code was reformed.TiaoFaZongLei and TiaoFaShiLei was also compiled.(Compile)Chi,Ling,Ge,Shi was classified.The changes of Code's style manifested in two aspects:first,it used the code system which was complied with Chi,Ling,Ge,Shi and other legal forms;the second aspect is that it used the names of these classifications of the fixed legal affairs to replace Ling,Ge and Shi.After the year of Shenzhong Yuanfeng,the main character of the code compiling system of the Song dynasty is that it used the means of composingChi,Ling,Ge,Shiand other legal forms. Songxingtong,all kinds of legal codes such as Chilinggeshi,and these legal codes such as Tiaofazonglei and Tiaofashilei,all above codes compiling were used the form of composing Lv,Chi,Ling and Shi,or form of Chi,Ling,Ge,Shi and Shenming.The formation of the characteristics of the structure of code of Song dynasty which is codified combinly by many law forms,the relation between the change of the nature and function of the law forms and it reflects in such respect,where at the beginning period of Song dynasty,the government revised the code of Xing tong,ling,shi by inheriting Tang dynasty law and Wu-Dai law and their legislation mode,modified and supplemented the Xing tong,ling,shi with(bian)chi.The Yuanfeng 2nd(the year of 1079),the emperor Shenzong made new regulation towards the nature of(bian)chi,ling,ge,shi,(bian)chi became the criminal law specification,ge became non-criminal and institutional law specifications,that is the detailed rules and regulations of implementation of ling,shi became the formula of the official document of executive order,the different nature of (bian)chi,ling,ge,shi has been distinguished strictly and they all were not overlapped. Because of the change of nature of(bian)chi,ge,they could not modify and supplement the law with different nature and forms,and the legislation function of(bian)chi,ge has changed accordingly,the government of Song dynasty had to adopt directly the way of revising the(bian)chi,ling,ge,shi,and modified and supplemented them which were being executed at that time,thus formed the new legislation mode of revising the(bian)chi,ling, ge,shi uniformly.Corresponding to the change,after Yuanfeng period,as far as the style of code codification,the government codified the comprehensive code of "chi,ling,ge,shi".The new points in the chapter are:the major characteristic of the codification structure of Song dynasty's code is "the combined codification with many law forms."ChapterⅥThe reason of change and overall appraisement.The reason of the change of the legal system of Song dynasty lies in various aspects,but the following points are dominant:firstly,the changes arising from the economic and class relation and political system put forward requirement to national legislation,this is the basic reason. Secondly,the emperor of Song dynasty paid more attention to the legal system,he concerned and instructed the activity of legislation and also took part in it himself.The emperor is the subject of the legislation power,his legislation reform is the main cause of change of legal system and the structure of code.Thirdly,the scholars of Song dynasty had strong feelings of saving the common people,showed concern about their suffering and hardship,they also mastered the law,their suggestion of legislation and concrete legislation activity palyed an important role in promoting the changes of legal system.The people who lived in the different times have different appraisements to the change and characteristic of legal system of Song dynasty.By reading the memorials of the courtiers of Song dynasty we can see the majority of them criticize it due to its severe details and changeableness,but since the modern times,the affirmative voice is louder gradully,for instance,Liangqichao was deeply touched by it and showed more exclamation, called it "a splendid wonder through the ages." I think the legal system of Song dynasty made up some defects of the Tang dynasty's and made its system more perfect.Its legal specification divided into two major series,one was criminal law and the other was non-criminal law,the lui corresponded to(bian)chi,duan li and ling corresponded to ge,shi,the interrelation between them was more hamonious and unanimous.The compiling and appliance of li made the potencial defects of legal system to be prevented and prosthesised maximally.The codes were appeared by the way of codified combinly with lv,chi,ling,ge,shi or chi,ling,ge,shi,sheng ming etc and many other legal forms,the content of legal specifications was concentrated and were classified by bian so they were convenient for consulting.Seeing from the development of ancient legislation,the codifilization of the law, several law forms codified combinly into a code is the representation of maturity of legislation technology.The populization of several law forms codified combinly into a code in Song dynasty is the highest level of the codifilization of law,so it is the representation and mark of be perfecting of the chinese ancient legislation technology,is one of the the representation and mark of be perfecting of chinese legal system.The new points in this chapter are(1) Two systems are formed in the Song dynasty legal system,one is the Lv,(bian)Chi,Duanli,the other is Ling,Ge,Shi,the former system is criminial law specification and the latter is the administrative law specification. (2)SongLing became the backbone of law system,the arguments are firstly,the quantity of SongLing is far more than other law forms,secondly,SongLing regulates the country's basic system and command Ge and Shi.(3) The legal system of Song dynasty is more perfect and reasonable than the Tang's.Its advantage lies in the corresponsibility and harmoniousness between various law forms is strong.The laws are presented by the way of code,the content is central and codified by classification,and it is convenient for consulting.The comprehensive ChiLingGeShi and special one are formulated seperately,so the legislation is more flexible and convenient.With li to make up the defect of statute,so the legal system is tighter.Therefore the legal system and code structure of Song dynasty is more perfect and reasonable than the Tang's.(4) The combined codification with many law forms is the highest level form of law codifilization.The popularity of the codes which codified combinely by many law forms is the mark and representation of the chinese ancient legislation technology which is perfecting gradually,and the mark of chinese legal system is be perfecting gradually,too.To sum up,the essay conserves the nature of various law forms of Song dynasty and their relationship,the presentation ways of various law forms namely the codification structure of code and on this basis further appraises the law system of Song dynasty and its historical status.The study of this essay brings into benefit for reunderstanding the law system of Song dynasty and even whole legal system of Song dynasty.
Keywords/Search Tags:Song Dynasty, Legal Syetem, Structure of Code, Yuanfeng Period, Change, Perfect
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