Investigation Of The Principles Of The Criminal Law In Tang Dynasty

This article, principally based upon A Modest Discussion of the Laws in Tang Dynasty, while reading other laws, orders, standards, and rituals, mainly investigates the formation, development and changes of the principles of the Criminal Law in the Tang Dynasty. The principles of the Criminal Law in Tang Dynasty are both coordinating and complete. Every principle has both general principle and sub specification. Every principle is both independent and inter-related. It has the characteristics of historical inheritance and creativeness, coherence and contradiction.The principle of severe punishment refers to the institution and thought of strict laws and severe punishment in the Tang Dynasty. It is mainly reflected in the punishment of the"ten evils". The principle of severe punishment is said mainly in parallel comparison with other crimes with a similar nature in the same period. In the structure of Criminal Law,"ten evils"head the list of other crimes. In sentencing, the severe punishment for the"ten evils"is reflected in, not suitable for commutation, no distinguishing for the chief criminal or accomplice, implicating relatives, capital punishment for fault crime, punishment for those who have done no harm, speech crimes, the same sentencing for premeditation and practitioner, low point of getting sentenced, and enlarging area of criminal law adjustment. At the same time, the"ten evils"are distinguished between heavy and light crimes, elders and youngsters. Vertically comparing, the sentencing of"ten evils"is lighter than the previous dynasty. It is reflected in the detailed division of the names of crimes, light sentencing of the same kind of crimes, limiting the implicating relatives. In legalization, heavy punishment for"ten evils", while in practice, light punishment. This is mainly due to special specifications in legalization and power over law in practice.The nature of the light sentencing by mainly reading"eight discussions"is to safeguard to the monarchical institution, to represent the legal privileges of the aristocracy, and is the representation and outer features of the ancient Chinese legalization."Discussions","requests","reductions',"ransoms","title-forsaking", are like chains to make the officials and their relatives serve light punishment. In legal procedure and sentencing, official aristocracy can get light punishment for heavy crimes, through"discussion","requests", and"reductions". In legal practice, they can also escape from punishment through"ransoms"and"title-forsaking"( i.e. by giving some money or forsaking one's official title, instead of getting the legal punishment). Therefore,"eight discussions"and other principles of light sentencing have the nature of classification and universality. Hence, the safeguarding of the officials in the Tang Dynasty is more universal than the previous dynasties, embodying in enlarging the scope of light sentencing,"officials"definition and their privileges and the conditional consecutive reduction of legal punishment.The nature of different punishment for the same crime is the un-equality of legal punishment. It is embodied in the principles of heavy punishment for the"ten crimes"and light punishment for the officials and their relatives with"eight discussions". It is represented as the distinguishing of high and low social position, and different ages, with the sentencing varying from the fourth category to the eleventh category for the same crime. In high social positions, the protection of the royal family can be extended to five generations. The protection of the officials is also strict rule combined with privileges. In the sentencing of commoners, different generations will receive different punishment for the same crimes. Even in the same generation, the older will get heavier punishment than the young for the same crimes. Among good and bad citizens, different punishment for the same crime is extended to relatives and the already dead. Therefore, same punishment for the same crime only refers to persons with the same social status without the relationship of seniority and subordination. From this we can infer that the punishment in A Modest Discussion of the Laws in Tang Dynasty is not only the crimes but also the person who commits the crimes.The principle of legal sympathy is reflected in the sympathy for the old persons, the under-aged, the ill and the disabled. It embodies in respect for the old, cherish for the young, sympathy for the ill and the disabled, and in forgiveness and cautious sentencing. It is the unity of the interests of the nation, the society and the individual. The principle of sympathy is lighter than the previous dynasties, and is embodied in the appropriate scope, the appropriate names of the crimes, the methods of sympathy, the scope of implicating relatives, and the affirmation of the old, the young and the disabled. In the written law, although there are provisions for the reduction of legal punishment, there are exceptions in legal practice, and the reduction of punishment for the old, the young, the ill and the disabled, sometimes is used to forgive them and giving up persecution at all. Besides, A Modest Discussion of the Laws in Tang Dynasty stipulates that age, physical condition and sex are elements affecting sentencing, not for conviction. If this understanding stands, there exist in A Modest Discussion of the Laws in Tang Dynasty crimes which do not get punishment.In the principle of amnesty, if a person reports his own crime within a certain time, he can get certain amount of reduction in punishment. He can get amnesty if he is an accomplice, if his relatives report him. Officials can get amnesty if he commits crime for the public good. An accomplice can get amnesty if he reports himself while on the run. The key to amnesty is"forgiveness", why it is"forgiven", in what condition it is"forgiven", and how much should it be"forgiven", all depend upon utilitarianism. Therefore, amnesty based upon self-report embodies utilitarianism in law. The reductionism in the Tang laws carries to the extreme. It can be said that justice is lost in utilitarianism. Re-commitment of crimes and commitment of several crimes are treated differently. Re-commitment gets heavier punishment than commitment of several crimes, although they are all committing crimes again. Comparing with previous dynasties, the principles of Tang law are more systematic and complete. They are embodied in the detailed standards of the distinguishing of principal punishment and supplementary punishment; in the decision of heavy or light crimes; and in paying attention to the punishment of series crimes. In the 502 provisions of A Modest Discussion of the Laws in Tang Dynasty, 13 provisions belong to subjective crimes, and can be divided into intentional and unintentional. The intentional crimes include the intentional crimes and unintentional crimes due to too much confidence in modern criminal law. Its unintentional crimes include crimes of negligence and accidents. It indicates that Tang law gives punishment for unintentional behaviour. It attributes crimes to objective results. In sentencing, there is difference between intentional and unintentional crimes. In the crimes of negligence of officials, unintentional crimes will get lesser punishment than intentional crimes, with two or three levels less. In the crimes committed by commoners, because of the existence of the principle of different punishment for the same crime, the reduction of punishment for unintentional crimes will depend upon a person's social status. The extent of reduction for elders who commit unintentional crimes against the young is larger than that for the young who commit crimes against the elder. Punishment for military crime is the same no matter it is intentional or unintentional. In co-committed crimes, the subjective elements, objective elements, blood relations and social status will affect the identification of the main criminal and the accessory criminal. In the sentencing of the main criminal and the accessory criminal, there are three types: heavier punishment for the main criminal, heavier punishment for the accessory criminal and equal punishment for both. It reflects in the provisions of A Modest Discussion of the Laws in Tang Dynasty that special laws are superior than the ordinary laws,and it also embodies in the principles of different punishment for the same crime in stratified patriarchal system. The principle of inference includes the principles of analogy and undue punishment. The principles of analogy in the Tang law can be used to decide whether a person has committed crimes or not, and whether the crimes are heavy or light. The analogy for light punishment is used in modern criminal law for the benefits of the accused. The principles of analogy reflect that the legislators have realized the limitation and lagging of the law. However, the defects of this principle is to"analogue without precedents to follow"and to judge arbitrarily. Therefore, we cannot deny the pursuit in ancient society for lawful punishment of crimes due to the existence of the principles of analogy. The fundamental reason for limiting the lawful punishment of crimes lies in the dictatorship of the monarchy. It is the"bottleneck"and the"yoke"for the principle of lawful punishment of crimes and the arbitrary judgement of crimes.