On The Peculiarity Of Chinese Ancient Criminal Law

The outstanding Great River Culture with more than five thousand years historyhas brought up broad, profound and unique Chinese traditional legal culture,yielding unusually brilliant results among the five principal legal systems of theworld, in which the criminal law ideas and institutions are unique products amongthe Chinese Legal Family Culture. It had ever been the focus of other countries andregions in the world, and been visited by other nations, establishing an example ofeastern Asian nations. However, few scholar specialize on the peculiarity of theChinese ancient criminal characteristics, which only have been discussed involvingin the studying on the peculiarity of Chinese Legal Family, or been focused on oneaspect, being lacking of Macroscopic systematic examination. Moreover, someissues are controversial, misunderstood, and neglected. Studying the ancient criminallaw from the macroscopic p, proofing the peculiarity of the ideas, status, legal formand content, demonstrating the unique feature, uncovering the profound culturalconnotation and values, providing guidance for the modernization construction, havetheoretical significance and practical value. The paper has five parts:The first part focuses on concept of cautious penalty, which is the mainstreamof ancient criminal conception. It is one of the most unusual content of the ancientcriminal culture, which is opposite to the heavy punishment conception supported byLegalists. It believed that criminal law was an ‘needed’,‘punishing tool’, wasauxiliary of rule of virtue, was the last resort in the case of invalid of morality andetiquette; asserting that ‘the priority of legislation’ was light and succinct, highlypraising ‘fair and just application of criminal law’ and ‘the presumption ofinnocence’; pursuing the effect of the application of penalty resulting of no offense;implementing conceptions of ‘giving the priority to life’ and punishing the innocent was heartless; asserting that ‘education was ahead of punishment, morality couldreplace punishment’; following the principle of ‘using human penalties to punishoffenders’, requiring that judges must follow ‘four procedures’ when hearing acapital case and being thoughtful, in order to save lives; following presumption ofinnocent, mitigating the punishment of the young, the old, the disable and the sick,‘who could be pardoned so long as they had just case’; the capital could be imposedonly after repeat check. The final power of imposing capital leaved to the king,which following repeating report before the execution. Meanwhile, penalties wereaccompanied by pardon systems. Prisoners under death sentence had full opportunity,the death sentence could not be applied before exhausting all the relief. Not only bethe conception of cautious penalty embodied in theory of Confucian, in orders of thebrilliant emperor and works of worthy ministers, in the governing institution, butalso in the judgment,which was based on the Confucian “People-oriented thought”,‘benevolent government theory’and the theory of human nature.The second part explores the auxiliary role of criminal law: the status ofcriminal law in Chinese ancient legal system. The Chinese ancient legal system wasdistinctive, and categories of laws followed inner logic, which was ‘TripartiteModel’, namely the separation of ‘Administrative institution, etiquette institutionand Law’. The assortment agreed with the Confucian conception of rule of virtue,namely according with classics and justice. The model gave priority to virtue, ratherthan criminal law. The traditional view, which considers the peculiarity of theChinese ancient legal system as ‘Combination of all laws dominated by criminallaw’, applies mechanically the western legal theory to the Chinese ‘Law’, which wasessentially being misunderstood. In Chinese context,‘law’,‘criminal law’ and ‘Lv’referred to the same thing, that was criminal law, which was negative rule forpunishing offenders; but,‘Li’is not only the principle of ‘Qinqin’ and ‘Zunzun’centering on ‘difference between you and I’, but also rule of regulating andpreserving the ‘harmonious’ and ‘orderly’ political and moral order, which waspositive rule for ‘nipping in the bud’. Li contained administrative Li and Yili, namelyadministration law and Etiquette method. In the ancient legal system with thorough order and organic unity, the administration law lied at the core, the Liyi law wasassistance, and the criminal law was the back force. The status of criminal lawembodied in its relation to LIyi law and administration law, embodied in preservingthe key status of Liyi and administration in the legal system. Yet, as ‘a greattool’which could be abandoned in the flourishing ages, the criminal law had drawngovernors’ attention, but its status was subsidiary.The third part focuses on the feature of law origin, which developed frommultielement into singleness. In certain period, besides the written documents, therewere other sources of law, such as Ling, Ke, Bi, Gushi, Li and so on, among whichBi, Gushi, Li were distinctive, otherwise scholars are divided on them, which is thesignificance of studying on them.parts of Bi and Gushi belong to judicial judgment,which were most robust legal origins. Li was memorials offered by ministers whichwas ordered by kings or involving how to solve problems. Once being ratified bykings, they would have the force of law, which were statute law rather than case law,and were popular in Ming and Qing Dynasty. Exploring the relationship between theLv and Li in the Qing Dynasty has important meaning for recognition of theoperational mode of ancient law origin system. However, overtime, the co-existenceof multiple legal origins developed into two origins, that were Dian and Li.Lvdianwas the framework of criminal law, with features such as abstract, principle andstability; Instead, Li were piecemeal, treated in accordance with seasonal conditions.Dian and Li could not be separated from each other, and supplement each other.‘Dian and Li supplementing each other’ was significant symbol of the developmentof the level of ancient legalization and codification.The forth part focuses on the Etiquette crime, namely the special kinds of crimein the ancient China. The saying goes that the law regulated violating moral rulesbehavior. Etiquette crime was serious offence, introducing into Lv in order to protectrank and moral preserved by Li. Making a general survey of ancient Lvdian, theetiquette crime regulation made great proportion in them. For example,‘Great MingLv’ had26items relating to the etiquette crime. The etiquette had its peculiaritiesand regularity in the aspects of punishment and constitution of crime. There were two objects of the etiquette crime: one kind was feudalism rank orders, such as‘missing the time to homage’,‘breach of etiquette’, and so on; the other kind wasfamily ethical order, such as ‘hiding the fact of parents passing away’,‘breachingetiquette of funeral’, and so on; officials were the main part of subject of crime;subjective aspect of crime had an important impact on conviction; both negativebehavior and positive behavior could constitute a crime. There were various penalmethods, the five forms of punishment in ancient China could be imposed, andextensively applied Shu Xing, Laoyixing, economic punishment and gave education.The last part focuses on conclusion, namely the reality should respond to thehistory. As the saying goes that’learning from the historic lesson could foresee riseand fail.’ Chinese ancient criminal tradition has unique strength of character and richimplication, which could enlighten the contemporary; the punishment could not beeasily imposed; nature’s justice and human feelings lie in law; the law should not beharsh, but never be missed; the etiquette culture should be carried forward.