The Research On Adultery Crime Of Tang Dynasty Laws

The Tang dynasty law is the representative of the whole Chinese legal system.<Tang lv Shu Yi> is the model of the traditional criminal law and the ancient code.The representative of Tang dynasty law is mainly for “Reasonably on the principle”and “uniform form”. Tang dynasty law which is by means of perfect legislativetechnique and rigorous structure express the maintenance of the level of identity andfamily status of traditional society. In traditional Chinese society, the family status isthe foundation of the level of identity. The reason is that home is the foundation of thecountry. Rape infringes upon the family status, the level of identity and the geneticconnection directly. So rape is the most representative in Tang dynasty law even inChinese traditional criminal law. I regarded it as the object of study; it is helpful todiscover the peculiarity of Patriarchal Law and Bioethics Law in Tang dynasty lawfrom the point of demonstration. It is also very helpful to analysis Tang dynasty lawcomprehensively which made remarkable achievements in the structure and techniqueof the code and legal concept and principle and so on.This dissertation is divided into eight parts.Chapter one is introduction. This part explains the characteristics of the contentsand forms of Tang dynasty law, and expounds the relation between them. This chapteralso introduces the research present situation about the rape in Tang dynasty law andthe reason of researching this item. Meanwhile, it is also introduces the researchpurpose, research methods, the structure and innovation and research significance.The second chapter is about the conviction and sentencing in <Tang Lv ShuYi·MingLi>. The rules are about the conviction and sentencing of rape in generalprovisions. The main contents include the following aspects: First, it is the restrictedconditions on original prerogative and particular applicability when officer committed the rape. Second, it is about the accessory special criminal punishments for the officerwho committed the rape, which is mainly to the deprivation of whose official rankingand titular honors. Third, the rape does not applicable on the provision that mitigatesor annuls a punishment in the case of voluntary surrender. Fourth, the rape does notapplicable on the standard of judging chief culprits or assistant chief culprits in a jointcrime. The adultery belongs to joint crime, but it does not applicable on distinguishchief culprits or assistant chief culprits form a joint crime. In this case, the punishmentof the chief culprits or assistant chief culprits is the same. Last, the principles ofspecial subject who committed the rape, such as monks, Buddhist nuns, Taoists,female Taoists.The third chapter is about the conviction and sentencing of the rape. The rape fallinto two categories, this includes the forcible rape and adultery. The rape fall into therape that does not concern the identity relationship and that concerns the identityrelationship. The identity relationship includes the superiority relationship, therelationship between the young and old, etc. The specific criminal behavior of therape all has the corresponding punishment. Sometimes, according to the differentcriminal behavior, subject of crime and behavioral nature, the criminal will besentence accessory punishments.The fourth chapter, it is the principle of the conviction and sentencing about therape in the specific provisions of Tang dynasty law. The general principles of thecontent includes: first, the rape is the absolute reason of divorce; second, the conditionof combined punishment for the rape and the bloodguilt; third, the rapper can be killedor hurt in a particular situation; fourth, the impose restrictions on the rape in pardon;last, the provided the principle of the rape in measurement of penalty.The fifth chapter, some criminal behaviors may be punished in accordance withthe crime of the rape. The analogy in Tang dynasty law emphasizes on the nature ofthe same of the analogue behavior. This constant analogue form can be found in Tangand Han dynasty law, which is still apply to the generations of codes after Tangdynasty. The analogy behaviors of rape is not statutory rape itself, but it is convictionand sentencing in line with the rape, which have the same character with the rape. There are three types in Tang dynasty law: The illegal to get married;officer-in-charge perverts the law for taking a wife; maintain the illegal factualconnubial status. All the analogy behaviors of rape encroaches on the legally maritalrelations. The analogy behaviors of rape in Tang dynasty law is consistent with therape in the respects of the application of punishment and ten categories of majorcrimes.The sixth chapter, the rape is involved in ten categories of major crimes. Thecontent of Tang dynasty law is full of moral and ethical. This is especially obvious inthe ten categories of major crimes in Tang dynasty law. The ten categories of majorcrimes is headed in Tang dynasty law, which is the expression fully recognize the roleof morality. For instance, a man raped his father’s or grandfather’s wife should applyto “internal disorder” of the ten categories of major crimes. The “internal disorder” isestablished that just reflects the request of moral codes in Tang dynasty law.The seventh chapter is about the legal practice of the rape in Tang dynasty law.There are two types of the records that is about legal practice of the rape in Tangdynasty law. One is the record in the handed-down documents; the other is the recordin the excavated document. There is obvious difference between them. The officialhistories which are represented by Book of Tang and New Book of Tang recordpolitical event great majority. This omits a lot of effective legal information. But italso offered us a large number of materials which reflected the legal practice of therape in Tang dynasty law. The excavated document represented by Dunhuangmanuscripts in Tang dynasty. We choose the remnant paper of judgment in Tangdynasty primarily. According to its style, it appeared in the shape of legal instrumentitself. It includes a lot of legal information. It includes the detailed content aboutproceedings of case, the legal practice and conviction and sentencing. We can findthat the rape is a common maleficent phenomenon from these two kinds of literature.Both the monarch and the champion pay attention to this. But the excellent legislationdo not embodied superiority in the official documents.The eighth chapter, the right to kill the rapist in Roman law compare with theright to kill the rapist with lawful authority in Tang dynasty law. We find four differences by the comparing Roman law with Tang dynasty law about the rules of thebehavior of kill the rapist. In the behavioral agent respect, the father or the husband isallowed to kill the rapist in Roman law; but the father’ right to kill the rapist issuperior to the husband’s. The “master” is allowed to kill the rapist at night in Tangdynasty law, but the connotation is very wide. In the behavioral place respect, theplace where the people who commits adultery are executed is the father’s house or theadultery woman’s house in Roman law; the place where the rapist is executed is themaster’s house in Tang dynasty law. In the behavioral time respect, the adulterers arekilled when they must be in bed in Roman law; there is strict limit in form, namelymust be at night in Tang dynasty law. The punishment of the excessive behaviorrespect, the provision of the Roman law is the punishment of the husband who killedhis adulterous wife inappropriately; the rules in Tang dynasty law on the excessivebehavior is very detailed. Generally speaking, the Roman law rules about the right tokill the rapist place emphasis on procedure, but the Tang dynasty law rules about theright to kill the rapist with lawful authority place emphasis on entity. The rules inRoman law highlight the protecting of personal rights and honors; but the Tangdynasty law highlights the defense of the individual and national defense behavior.