Study On System Of The Trial Error Correction In Qing Dynasty

The history of judicial trial-error-correction system is nearly as long as the history of the judicial-trial system. In Qing Dynasty, from the Local to Central goverment, many departments enjoyed the judicial authority or holds concurrent posts judicature's institution, The trial rank is very complex and unprecedented. Therefore, the judicial trial-error-correction system in Qing Dynasty, on the one hand, carried on the system consistent characteristic; on the other hand, it also displayed certain distinctive quality. As the last successor of the Chinese traditional law and the opener of studying the Western modern times law, the judicature in the Qing Dynasty resides in the key position of "carries on the task" in the history of Chinese legal system. On the condition that wrong in the contemporary China judicature still unceasingly occurred and appealing for help became one of the most widely used relief method in judicature realizing fairly, studies the formation history, the basic construction, the movement way, the characteristic and the political thinking foundation of the judicature trial-error-correction system in Qing Dynasty is very important for dealing with some aspects of misunderstanding in contemporary judicature, such as the rationally analyzes its reason and the corresponding influence, and how to avoid it as possible as we can. This thesis has studied the issues related to the judicial trial-error-correction system in Qing Dynasty from four aspects based on the discussion mentioned above.In the first part, there is the introduction to judicial trial-error-correction system before Qing Dynasty, as well as the essential feature of the judicial system and the corresponding error correction system in Qing Dynasty. Before Qing Dynasty, all feudalism dynasty had utilized all kind of trial-error-correction system which and to follow down, mainly including the appeal, the appeal, to sue, to reexamine, the joint hearing and the supervisory system straight and so on, to prevent from the judicial error. Qing Dynasty's judicial system is the Chinese tradition trial development mountain peak, with all previous dynasties previous dynasty comparatively speaking, The judicial system in Qing Dynasty was the peak in development of Chinese traditional judicial system, and it was complete and meticulous relatively compared to the previous dynasty because of weakening the judicial jurisdiction authority of all levels of judicature official, guaranteeing that the emperor own the highest and final jurisdiction, carry out the "cautious punishment" and preventing from the judicial wrong effectively, presented unusual perfect prudent and meticulous. Trial-error-correction of Qing Dynasty's was safeguarded and presented mainly through progressive examines the extension to reexamine, the joint hearing (examines including autumnal review of provincial death sentences and dynasty) , sues, institution the straight and so on appeal and supervision ways.In the second part, the origin and the characteristic of the "misjudged law case" in judicature trial of Qing Dynasty are analyzed based on the concept explanation of "the misjudged law case" and its typological inspection. In view of the uncertainty of limiting the concept of the "misjudged law case" and historic of evaluation criteria, the "misjudged law case" is defined generally in studying trial-error-correction system of the Qing Dynasty, and it include not only those in being surely the "erroneous judgement" case, but also those having been changed or corrected in trial via higher authorities (also include those being changed or corrected by successor ) in spite of it being whether a judgment error by a entity or not. Misjudged law cases in Qing Dynasty is mainly divided into for catenaries: "the case that the fact is recognize unclear or wrongly", "the case that law and rule is unsuitable", "the case that is not reasonable", " the case in which involve in corrupted officials or the malicious motive".The characteristics that the judicature of Qing Dynasty still take the criminal trial as the basic construction has had the very important and directly influence on many aspects of the formation and correction of the misjudged case in Qing Dynasty. First, taking "punishment for written confession" as the means to detect and trail is the direct root of wrong case, especially for part of injustice case. Next, the bureaucrat system, in which the function of administration and that of judicature are confused with each other, causes that the ultimate authority of judgment is not formed based on the formulation of laws that are issued or authorized by the government at any time; On the contrary, the ultimate authority of judgment is often established via higher administration right or the highest dominant authority. Third, as the feudal government official who strives for the survival and the development in the surrounding in which elevating and evaluating officials is aiming at whether to be loyal to the emperor or not, the evaluation of his legal knowledge and career skills is rarely to be pay attention, and the system in which officials are chosen and evaluated become a potential factor causing misjudged law case. Fourth, in a despotic system in which imperial authority is concentrated highly, the judicature does not run as a public weapon realizing the social justice, but a sharp weapon utilized to maintain despotic governing. Fifth, the system of the judge responsibility is a reason for the misjudged law case and being difficult to correct errors.The third part, the start-up procedure of trial-error-correction in Qing Dynasty and its characteristics of running are studied. The subject of re-trying procedure of the judicature case in Qing Dynasty and its start-up is various, and there is no specially fixed pattern even if the non-conventional form forbidden by is often introduce. The reason is that there is a despotic regime in which authority is centralized to the emperor and the judicature is not independent at all. On the conditions that the judicature and the administration are depend on each other, trial-error-correction, regardless of the way of starts-up and whether the re-trying is truly success, the one playing the decision role is neither the case litigant or his relative, nor procedural regulation of the law. What really have the authority to determinate is the higher or more higher rank judicial department. The liability system for judicial officials in Qing Dynasty take "is implicated" as the primary coverage, preventing and alleviating the occurrence of the misjudged case, but simultaneously increasing the judicial cost to correct the misjudged law case. The characteristics of trial-error-correction system in Qing Dynasty is mainly in four aspects: (1) the aim of the running of correcting error is to supervise and restrict government officials in all rank to be loyal to the emperor; (2) the right of the litigant applying for re-trying is heavily restricted; (3) safeguard mechanism is running through the joint liability of the government officials ranking closely; (4) "judge repeat and re-try repeatly" with no final trial. In brief, under the conditions of the judicature in Qing Dynasty, the litigant and the referee do not lay their hope to solves the case dispute (including correcting judicature mistake) on the legal system or the procedure itself, but on the referee paying attention to his unjustness, and on the trusting and worship to moral or wisdom of the referee.In the fourth part, the author analyze the political basis and the goal of the trial-error-correction in Qing Dynasty The governors in Qing Dynasty not only utilize the doctrine of the traditional Chinese Confucianism to maintain the political and legal system under the governing of their clan but also treat "the monarchial power god gives" in Chinese Confucianism as the theoretical basis of implement the highly imperial despotic authority, which make the absolute monarchy system to achieve the unprecedented height in the Chinese history. There are differences between the politics system in Qing Dynasty and the Chinese tradition politics and legal system: First, the Manchu clan enjoys the special position in the national politics life; Next, the relation between the traditional crowned head and the officials is no longer the relation between the different ranking, but evolves to be the relation between master and slave which shows the attribution of personality attachment. As the product of a specific times, there has its malpractice in the trial-error-correction system in Qing Dynasty, but there still has some valuable experiences which can lend its use to establishing the law construction in the present age.Finally, the author makes an effort to express such a point: on the conditions that contemporary social system has been wholly different from the feudal and absolute monarchy system with the changed times, how to guide peoples to no longer lay their hopes on political authority to realizes the justness that is what they hope and how to construct through the system and consummate guides the people no longer to place hopes in through the political authority realizes the judicature to be fair, how to mold the judicial authority in final trial in the mind of peoples, avoiding the judicial tragedy of "walking to the final trial by any means" to occurrence again, is truly the ultimate goal of studying on judicial trial-error-correction in Qing Dynasty in this thesis.