The Study Of "Tiansheng Law" Under The Perspective Of Comparative Law

The subject of this paper is on "Tiansheng Law" from the perspective of Comparative law, compared with the Song Dynasty law, Jin Dynasty law,"Fa Ze" and "Xin Fa", in order to solve the following problems. Compasion of the similarities and differences between the Song Dynasty law, Jin Dynasty law and the "Tiansheng Law", and then analyzed the causes; Exploring the sourse of the "Tiansheng Law"; Through the vertical comparison, reveal the changes of the legal system at the end of the Xixia; Conclusion the Xixia legal system of the unnoticed part.This paper consists of introduction, text conclusion, the main body includes two to the five chapter.Chapter one is foreword,which explained the background and meaning of this selected topical, the overview of "Tiansheng Law", and the research methods of this paper.Chapter two is the penalty system of the "Tiansheng Law". Through the comparison of the legal system of Xixia and Song, exploring the sourse of penalty on "Tiansheng Law", for example,the Xixia Rod drew lessons from the "Jianlong Rod" on the early northern Song dynasty; The whipping of Xixia was close to the small army rod of Song; The "Ju Guan" punishment of Xixia was from the "Suo Bi"punishment of Song. In addition, though the wildly used of confiscate punishment and extended the penal servitude, alleviated shortage of labor population. Xixia copper resources were scarce, but had very many horses,"Tiansheng Law" used the punishment horse to replace the copper, which had distinctive national and local characteristics. In this chapter, we discussed the Lianzuo system and the Fanzuo system, Compared with Song’s Lianzuo, Xixia’s has its own features. For example, there was no Lianzuo of govern or officials, but there existed Lianzuo of false charge. Also, the Lianzuo of relatives was more popular, but the Lianzuo of neighborhood usually was not applied. The reason is that there was less population and crime in the nation. The Xixia’ Fanzuo omitted the concept and principle, it has the features of pragmatism compared with Song’s Fanzuo.Chapter three is the main charge of the "Tiansheng Law". In this chapter, we summed up the Murder, the Assault, the Rape, the Malfeasance, and the crime of escape. Compared with Song and Jin law, we found that the basic framework of the Xixia crime is from the Song, such as the classification of the murder, the birbery and the rape, its all the same with the Song. In addition,"Tiansheng Law" also has the victim protection system on array. Thus, the Song dynasty law had a great influence on "Tiansheng Law".The "Tiansheng Law" had the code for operation and practicality, but the concept, principle, interpretation is rarely. This is the main feature of the difference in the Song dynasty law. In addition the measurement of penalty in the illicit sexual crimes of Xixia was lighter, which is unique in the Chinese legal system. Moreover the law technique in Xixia law was developing, for example, the establishment of limit action and arrest procedures, it was worth mentioning that it set up a new accusation "adultery and hide crime", which was one century earlier than Yuan law.Chapter four is the main department law of the "Tiansheng Law", it includes Animal Law, Religious Law, Storage Law and Wine Law. In the Animal Law, Xixia and Song had many differences, such as there were much forage and post horse code in Song, and there were much shaft sinking, the shepherd chosen and the tax of animal. In addition, the setting of "Muyingneng" and "Zhimingfa" had national feature, which was different from Song. In the Religious Law, the monk of Xixia had higher status, the Clothes monks had the same legal privilege with the official, which was different from the Song and Jin. In the Storage Law,"Tiansheng Law" was more strict, such as the code of official goods comsumption, stipulated in detail depletion rate of every official goods, which was rare in the history of law. In the Wine Law, the Xixia government managed the monopoly of distiller’s yeast and release the wine management because of the rarely population and the small wine consumption market. It showed the characteristics of yeast law more but less wine law reflected in the legislation, which is different from Song.Chapter five is the judicial system of "Tiansheng Law". There were many judicial code in "Tiansheng Law" transplanted directly from the Song dynasty law. From the legal origin, there were from "Song Xing Tong" and the code of "Tianpingxingguo","Yuanfeng","Shaosheng","Shaoxing". In addition there had many obvious traces of legal transplantation with the interrogation system, the trial period, the trial avoidance system,"Ju Yan"system, and the prison system. This chapter also summarized the surrender system, guarantee system, ask for instruction system and the law of charge reward. In surrender system, it is the "special regulation" in "Tiansheng Law", which is different from the "principle regulation" in Song dynasty law. In the law of charge reward, it is more concise and practical than Song’s charge reward by using the form of reward level by scale of punishment.In the conclusion part, we briefly analyzed the similarities and differences between "Tiansheng Law" and the Song and Jin’s legal sysem, and the characteristics of legal transplantation. In addition, we discussed the reasonable part of "Tiansheng Law" and the changes of legal in the end of Xixia.