The Study On The Lawful Culture Connotation Of The Chinese Traditionnal Judicial System

The traditional judicial system was the important component of the Chinese ancient lawful institution, it was important system segment of carrying out the law and the last security line of the social impartial, and took on safeguarding domination order and social order. The execution of the judicial system always embody that judicial state was good or bad, and it determined that the lawful system of enfeoffment made the people true, made them give in, related the country stabilization and the vicissitude of dynasty. The better execution of the judicial system had benefit of reducing framed-up and wrong cases, and had benefit of maintaining the just, seriousness and definitive of the law. So, the Chinese ancient rulers attach importance to constructing judicial system very much. The building and determinacy, standardization of the judicial system is important sign of judicial civilization and progress.The cultural connotation restricts the establishment and its form of the lawful system. By conducting cultural analysis to the traditional judicial system, it is a key to understand and percipience the essence and peculiarity of the traditional judicial system, and it also improves the requirement of the modern judicial system. The traditional judicial system always takes root the fertile soil of theChinese traditional culture, entire culture and the social consist of judicial judgment's background, judicial judgment's system and judgment activity subsist a interlock relation with the politics, the economy, the religion, the moral spirit and traditional ethics etc. The interlock relation is dialectical, not unidirectional decisional relation. The judicial system, one is different subordinate system with the other department of the cultural social, the other is in a same cultural sequence of ideas and the social setup with the other department, they influence each other. So, the traditional judicial system is a carrier of specific spirit elements, is a kind of cultural phenomenon, and is the important part of the ancient lawful culture. The philosophy ideas , the sovereign style, the three cardinal guides and the five constant virtues as specified in the feudal ethical code, the official culture, the notion of ghost and spiritual being, the culture of the religion , are all its cultural background, these cultural elements restrict and affect the value preference of the traditional judicial system, brood the traditional judicial system's variety and style of administration, ethics, difference, entirety, decentralization, these make its cultural connotation to have special embody in the lawful facility, technique, ideology etc. These abundant cultural connotation also incarnate truly the history value of the traditional judicial system, and also how to select metropolitan territory's resources, and how to rationally utilize metropolitan the resources of the territory, it will help us to improve our Chinese modern judicial system.The dissertation is adopted the research ways of history and conclusion combined, sociology, case law, and analytical comparison, under tiding up and applying a lot of.historical dates, it studies the connotation of the traditional judicial system by culture's vision , and excavates its implicational lawful culture value, looks forward to await opening out really the connotation of the traditional judicial system, and opens up the charm of the ancient lawful culture, thus deepens the rational knowledge of the connotation of the traditional judicial system. Under this cultural field of vision, the judicial system is not only the tool and method of settling social question, but also it reveals itself some specific crowd's value seek. By the research of the connotation of the traditional judicial system, we may correctly and justly appraise the historical function, historical value , historical significance and modern value of the traditional judicial system, and we can compare to the modern judicial system, look for and find agreement between ancient and modern, develop and improve the modern judicial system. On the ground of the research target, the dissertation includes five originality points: the first is that the writer thoroughly explores the internal specification of which the Chinese traditional culture restricts the traditional judicial system ; the second is that the writer break through the limit of the traditional ways of the study of the legal historiorgraphy, uses the crossed ways of the science of the religion, the legal theory and the history, and carrys out thoroughly the cross-disciplinary research on the key of the traditional judicial system; the third was that the writer especially reveals the relationship of the religious culture and the traditional judicial system by the cross—disciplinary research; the fourth is that the writer puts forward furtherly discussion of the connotation of the traditional judicial system from the view point of the cultural ecology.The dissertation includes five parts, except the introduction and the conclusion.What are discussed in the Introduction are the realistic significance and breakup of the connotation of the traditional judicial system, limit some words and phrases of "the culture", "the lawful culture", "the traditional judicial system", explain the study ways, introduce the current situation of academic research, account for the paper's study vision and waysWhat are discussed in Chapter One are the three original cultural foundations of the traditional judicial system. The weather notion, the humane notion, the notion of god and human, they are the philosophy base of the traditional judicial system, by these philosophy ideas, took shape some judicial concept of "not worth action", "peaceable", "ethics is more important than punishment", "the weather harmony" and so on, established the system of amnesty because of disaster, the system of judicial season, established the judicial rules of "show benevolence", "cautious penalty", "fair"; formed the judicial structure and operation ways of "dropping a suit", " prohibition action", that they are the center, "no penalty" is the tallest judicial boundary, "no action" was the tallest value and ideal aim of the Chinese traditional culture. The system of imperial authority was the political culture foundation of the traditional judicial system, decided the character, responsibility, mode of the traditional judicial system, it restricted and affected the value preference of the traditional judicial system, the imperial authority controlled the adjudicative power, the judicial system became the imperial authority's dependency. The culture of three cardinal guides and the five constant virtues as specified in the feudal ethical code was the social base of the traditional judicial system, and they relied on each other.In Chapter Two the writer discusses the Chinese traditional judicial system's inferior cultural foundations. The traditional judicial system can't do without the support of the ancient specific culture base, the official culture mould Chinese ancient judicial officer's law onforcement notion, guided their law onforcement right; the notion of ghost and spiritual being and the culture of the religion affected secretly the people's judicial concept, governed judicial ways.In Chapter Three the writer discusses the essential character and style of the traditional judicial system. The traditional judicial system which took root in the Chinese traditional cultural soil, was imbued and softened secretly, they affected and restricted the value preference and judicial notion of the traditional judicial system, and they brooded and brought up the style and character of the traditional judicial system: it had the judicial office which was set up by the way of the administration, had ethical judicial operation way , and it had judicial policy which lied in softhearted feeling and cruel ways, it had the trinity referee system of "law, feeling and li", it had judicial tradition with municipal trial that the civil decision differ from the criminal adjudication and criminal adjudication was more important than civil decision.In Chapter Four the writer discusses the lawful culture value of the traditional judicial system. According to lawful cultural theory, the writer has summed up lawful culture connotation of the traditional judicial system from normal aspect, facility aspect, lawful skill aspect, idea aspect, and interpret its historical value.In Chapter Five the writer discusses the succession and sublate of the traditional judicial system's lawful culture. The special rights culture must be eradicated because it restricted the establishment of the judicial authority; the judicial office which was set up by the way of the administration influenced the independence of judicature. The mediation system and the system of judicial review of death sentences are all the essence of the traditional judicial system, we should study them. The law and feeling are joined together, the concept of cautious penalty and so on, today we should sublate to these lawful culture. The traditional judicial system has already passed way because the law of the modern times changed in nature, but the lawful cultural connotation of the traditional judicial system and included historical value flicker the ancient legal system's culture radiance, as an integrant of the Chinese lawful culture, it has affected modern people's mentality and judicial practice by a special inertia. We can't arbitrarily gainsay the traditional judicial system, and can't also take for it as treasure, we should analyze historically it, and we seek truth from facts to grant it, remove its draffy, and absorb its essence.To study the cultural connotation of the traditional judicial system, it reveals the origin that the present the concept of the legal system lags the concept of the modern legal system, and it points out the channel of solving the question, namely we should breed fertile ground of valuably concept that it is fit for the modern judicial system's growth, and conceive the culture of the modern judicial system. This is a essential proposition of the modern judicial adjudication's reform campaign, in fact the proposition is also a question of all kinds of the alternative and innovation of the traditional judicial resource in the society. At present, the whole conceive of the Chinese judicial structure, not only consist in absorbing scientifically and rationally the nutrition of outside lawful culture, but also remove the psychology that we are eager for instant success and quick profit for a long time, concentrate and digest the Chinese native abundant traditional judicial resource, and organically combine the concept of constitutionality spirit which the West respect individual value and the Chinese humane ideal that Chinese attach importance to human and feeling, thus we must mould the most perfect the blueprint of the legal society!...