Research On Traditional Family Judicial System In China

As an important component of Chinese legal culture, the traditional Chinesefamily judicature refers to an activity within a family clan, designed to adjudicatefamily disputes and punish the offenders among family members by the ancestralsermons and family rules so as to safeguard the family clan and stabilize its order.This activity includes some necessary judicial procedures, such as accusation,adjudication and execution. As disputes often arose within a family clan over suchissues as cropland and marriage, in order to secure the well-ordered development ofthe family clan, the patriarch exploited the authority of respected elders granted tohim to implement judicial disposal of those family members who had gone against theethics and rites and wouldn’t stick to the rules and regulations. Family judicature is ofa three-level organization structure made up of family, upper family branch and clan,with the patriarch as the adaptive agent.Family judicature should not be interpreted by the implication of judicature inthe modern sense, whereas it should be observed and studied against the specifichistorical background in ancient China. The family judicature in question herein is aconcept in a general sense, and it is obviously different from the so-called judicaturerestricted by the separation of the three powers. The development of China’s ancientfamily judicature at each stage was closely associated with the national condition then.This determined the fact that in the few thousands of years’ development of China’sjudicial system, the ancient judicial system formed its own distinguishing features,one of which is the development of family judicature, for it happened to coincide withthe law of development of China’s traditional society. This thesis falls into seven parts,devoted to the study on China’s traditional judicature.The first chapter is the introduction, in which a question is raised,“What kind ofjudicature is family judicature?” At the same time the origination of the selected topicfor this thesis elaborated, including the significance and purpose of this research,current situation of relevant research and data collection, the train of thought inconducting this research as well as the main content. In this part, the core conceptsapplied in this thesis, namely, family clan, family law and family judicature, aredefined, with the aim of clarifying the scope and boundary of the three concepts. Atthe end of this part are mentioned the main innovative points of this thesis: of all therelevant researches on China’s judicial system, it the first one that is not confined to the study of the state of development of the country’s official judicial system, butinstead, it lays more emphasis on the unofficial judicial system. And it is the firstattempt to assign a special topic for a doctorial thesis, under which the unofficialjudicial system is specifically expounded. This is conducive to clarify the skeleton ofthe development of China’s traditional judicial system more comprehensively andobjectively. After looking through large quantities of family genealogies and localchronicles, based on the mastery of the current situation of research on family systemat home and abroad and that of the research on traditional family judicature inassociation with the analysis and statistics of data information, we are the first to pointout that family judicature is typically inquisitorial judicature by able and virtuouspersonages.The second chapter expounds the social causes of the development, evolutionand prevalence of family judicature. While dwelling on the developing and evolvingprocess of family judicature from burgeoning, developing, maturing, prospering, andfading out, it introduces the most influential family judicial systems in variousdynasties, and with the focus on the judicature in the Ming and Qing Dynasties as akey point, it conducts a cohort study on family judicature. The family judicature ofthis whole period can most sharply reflect the basic features of the family judicaturein the ancient Chinese society: close combination of politics with ethics, advocatingetiquette and attaching importance to law, simplicity and practicality.The third chapter analyzes the unique agricultural civilization of familyjudicature, the combination of morality, law, sentiment and propriety, administrationof justice in moderation for harmony, the practical and rational pragmatism, whichconstituted the ideological bases of the traditional family judicature.The fourth chapter analyzes the organization structure and litigation judgment offamily judicature and points out the evidence and procedure of law suits, the methodsof penalty and the trial effectiveness.The fifth chapter elaborates the conflict and integration between familyjudicature and the judicature of the country. Though the dissertation of China’straditional family judicature in the previous chapters, it points out the fact that China’straditional family judicature was the inevitable factor in existence during thedeveloping course of our country’s ancient judicial system and that although there wasconsistency between family judicature and the state judicature with regard to thepurpose of penalty, yet in the scope of penalty, the state judicature has its restrictions, which embodies the integration as well as conflicts between family judicature and thestate judicature.The sixth and seventh chapters expound through a well-rounded argument thebasic characteristics of the development as well as the historical functions of familyjudicature, and summarize the positive value and negative effects. And throughdialectical criticism of the transitional family judicature, value assessment is made,which can facilitate a thorough comprehension of what kind of judicature familyjudicature is.The significance of the research on family judicature lies in the prospect that itsideology and soul can provide a reference for the construction of the present-daysociety with the rule of law and can inspire us in how to make good use of thebalanced capability and the effect of its government of society. The penalty of thefamily members by the family law varies in ways, degrees, lightness or heaviness.The penalty ways of family judicature, for example, though such punishment asbeating with a cane or rod, and putting a clan member to death is no longer inexistence today, in understanding traditional family judicature, we should see theinfluence its ideology and soul have brought on the judicature ideas of the day.What should be affirmed is that the ideology or soul of family judicature isindeed in existence. Whether we are willing to admit or not, it will exert certaininfluence on the national law. The judicial ideology transferred from the later-periodfamily judicature will be a basic background to be taken into consideration when weanalyze the operation of the statutory law. Here we have come to the question why weshould discuss how the judicial ideology transferred from family judicature pass intojudicature of the day. Family judicature, as an important element of legal culturewitness by society and history, with the development of society, although its ownoriginal features are no more, the sub-consciousness left behind by it, which has beensqueezed out of shape by the national law and has taken on modern judicial ideologyas its pattern of manifestation, will still positively affect the development of thejudicial systems of our country.