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Research On Tang Dynasty Lawsuit System

Posted on:2010-12-03Degree:DoctorType:Dissertation
Country:ChinaCandidate:X ChenFull Text:PDF
GTID:1116360308967588Subject:Historical philology
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Abstract:This article tries to study and research procedural regime of Tang Dynasty from the perspective of historical documents, the full text is referenced to the logic of the modern architecture of Law, based on the different stages of judicial proceeding, the full text is divided into ten chapters:First, second and third chapters focus on the prosecution system to discuss the way the prosecution, arrest and compulsory measures, the issue of bail system and so on.. The results of research show that:The private complaint proceedings are the basic way to start all types of judicial proceeding in Tang Dynasty, after a long practice, the law submissions as the written way has been recognized by the general public and gradually formed the litigation habits of holding petition on discussion and debate. A symbol of putting on record is written comment of accepting and hearing the case by the Chancellor of law, content instructions are different according to the kinds of claims and the case's circumstances.In the judicial practice, the grass-roots level of law officials take on the arrest affairs, officials of the arrest have the right to arrest suspects and prisoners through the coercive measures of mechanical restraint and bind.etc.Officials of the arrest can also deprive prisoners'belt, hold them on ban land so as to show the hardship of shame. The officials of the arrest are in the social status of inferiority and often suffered punishment because of unsuccessful arrest, false arrest period, and other reasons. In addition, village officials and a broad grass-roots organizations involved in litigation activity, to assist the officials to accept the report, issue a warrant to the defendant and witnesses, track down the obligations of people. And the most related description of hell officials's arrest and apparatus in the novels are gradually fromed based on the fixed proceedings in the Tang Dynasty. The law of Tang Dynasty initiated from the compassionate and humane punishment such as the concept of pro-homotopy required that a prisoners non-confession after the necessary torture, lying-in woman,and the people keeping vigil beside the Dead may be released. The stagnation problem are prevalent at all levels of the judical organisation, so it is difficult to reduce the large number of prisoners through the bail system.Fourth, fifth, sixth chapter surrounding the trial proceedings in the Tang Dynasty to study the Court procedures, the joint trial judge between the same authority of officers as well as evidence of system. The novels of Tong's writers about the pattern of hell judicial tribunal are based on the structure of prefecture/county government offices,Liu-cao joint office in the Tang Dynasty, the adaptation of trial judge scene by the literati certainly became a fixed and common pattern of the court in both hell and the land of the living world. Inspecting the story of adjudgment in hell and the unearthed record may know that the criminal court hearing procedure in Tang Dynasty included such concrete link.as the plaintiff to plead, the government official to issue the subpoena, judge to inquire, the defendant to reply, confession by torture, the two parties to confront, to examined the lawsuit record and so on. All levels of government officials departments place on trial in the case process, also cooperate and division of labour with individual responsibility, sign in the joint archives, and undertake the association legal liability. Through the analysis on the unearthed literature,it is not difficult to discover that the same duty joint signature judicial system obtained the suitable degree implementation in the Tang earlier period. In middle of Tang Dynasty, in order to adapt the legal procedure to transform highly effectively and concisely,the joint signature judicial system has had the obvious change which mainly performanced to simplify the procedure of de-counter(通判官)sign.Many Tang's novels show that the judges don't pass to affix a signature, which maybe related to the reform of jointly signing the judicial system.The methods to obtains evidence in Tang Dynasty had not great strides, from the way of obtaining the evidence, Tang Dynasty judge settles a lawsuit mainly insisted that "trial the prison by five to dispute(以五声听狱讼)"such as the traditional trial pattern, stressed matter of judge hearing through inquires to get the related information.At that time.limited by the technical level,the most case evidence were still mainly obtained by the accumulation and the traditional method, and it is also insufficient in the method of theory.summary regarding to the collective evidence In order to obtain the oral confession, Tang Law allows to carry on the inquisition by torture on the criminal. Illegal inquisition by torture is not the individual phenomenon in specific historical period of Tang Dynasty,but is long-standing chronic disease in the practice judicial.In the seventh and the eighth chapter, as the rank of lawsuit audit as a research center,to study the judicial authority of Tang Dynasty, Replaced plead and plead directly and the phenomenon of Judicial authority divided into part by the different law deprtments.The lawsuit reexamination level of Tang Dynasty divides into two kinds:the appeal to reexamine and to report reexamines, the former is made the known truth as the clue to take on the progressive appeal, and belong to the sues initiated by bill of complaint; The latter is based on the law department reported reexamines, and belong to the sues initiated by the legal responsibility. These two exist overlapping superposition relations in the level of receiving the document and the aspect of examination,they actually have the essential differences. The relative replaced sues are the very common phenomenon in Tang Dynast,and becomes the important way of rehabiliation judical case and the injustice inspection.Under the confucianist clan law relative ethics idea's influence,the relative replaced sues often receives esteem and the public awards as the magnanimous act. Tang Law approved five ways as the direct and staight sues to the emperor:Yao che jia(邀车驾);Wo-deng-wen-gu(登闻鼓);Shang biao(上表);Li fei shi(立肺石)and Tou gui(投匦),especially most shown as the way of Ni deng wen gu.In the Tang Dynasty's private prosecution case, the phenomenon of self-destroyed people became very common, which possibly has certain influence on the case advancement and the trial result.The system of Censor togoho hearing case is established, which caused subtle change in the Tang Dynasty lawsuit, in fact, the Yu-shi-tai(御史台)and the Shang-shu-sheng(尚书省)are becoming the compound appeal institution, through the Yu-shi-tai lawsuit become the first choice to sue to the capital. The Tang Dynasty armed forces department acquire the power of the jurisdiction is direct correlation with the imperial guard influence increasing unceasingly after An Shi zhi luan,the ordinary jurisdiction authority receives the serious violation, the armed forces department acts without authority so as to interfere the normal state/county Judicial lawsuit, the ordinary justice tends to be weak in competes for the lawsuit authority with the armed forces department. In the Tang Dynasty judicature activity, "San Si shou shi" are the standing appeal bodies. "San Si Tui Shi"(三司推事)are the provisional organization to accept the dispatch to adjudge the major case. The former are the standing highest appeal organization,when necessary which can interrogate the serious case present by the imperial edict. The latter are temporary organization from beginning to end who accept dispatch to hear and decide important case and finally undertakes the appeal to examine without the authorization.The ninth and the tenth chapter, regarding to trial inspection in Tang Dynasty, discuss the judicature supervision and the death penalty re-application system. The findings indicated:The Tang Dynasty pay attention to the judicature supervision nearby the national capital especially, Zhong-shu meng-xia(中书门下),Censor Yu-shi-tai, and the national capital organization are the important force in participating on Lu Qiu and release prison. The Tang Dynasty establishes two large-scale systems include the central official served as the Lu Qiu officer and the regional dispatched Lu Qiu officer responsible for the local punishment prison. The former also has different from standing and temporary divisions, standing divisions's duty position are stem from the Ministry of Justice and censor togoho,including the Lu Qiu of Ministry of Justice and Lu Qiu(虑囚)of censor Yu-shi-tai; Temporary divisions's duty position are taken up by the central civil and military officials. The regional dispatched Lu Qiu system mainly dispatched the local inspectors such as Xun cha(巡察),An cha(按察),Guan cha(观察)to take on the Lu Qiu task. Xun cha,An cha as Lu Qiu Officer are dispatched based on the time opportunity according to government level to interrogate prisoner,"various prisoner interrogated once five days" is definitely judicial routine. The state governmental officer are generally through two ways of consulting record and interrogating the convict to carry on the judicature trial.At the beginning hundreds years of Tang Dynasty,the king interrogating personally, dispatching an envoy to interrogate and Justical officer interrogating frequently alternately executed, after Tianbao year,the records of king interrogating personally start to reduce gradually, which is displaced by the frequent dispatching an envoy to interrogate and Justical officer interrogating.To the mid-late Tang, Justical officer interrogating develop into the most common judicial supervision way. The system of re-application of death penalty was the key point to Shows the discrete penalty thought. In the Tang Dynasty judicature practice, Zhong-shu men-xia gradually formed the convention of participating the adjudgement on important case trial and the death penalty detailed re-application. The death penalty case must pass through the Ministry of Justice transcription reproduction, the zhong-shu men-xia re-application in detail then report to emperor for adjudication. The implementation on death penalty re-application system meet the biggest disturbance which is coming from the king orders, the late Tang death penalty re-application system's distorted movement may be the typical illustration on the willfully disordering nomal law by the feudal crowned head.
Keywords/Search Tags:Tang Dynasty lawsuit, Unearthed literature, Hell lawsuit in Tang's novels, Legal procedure, Judicial supervision
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