A Study On The Problem Of "Resolation Case To Decide But Not In Accordance With The XingShu"

It is generally agreed that "casting XingShu" by Zichan of the state of Zheng in 536 BC marked the beginning of Chinese statute law’s history as a twist meaningful event in Chinese legal history." former kings resolve case to decide but not in accordance with the XingShu "was said by Shuxiang in Zhaogong 6 year is the basis of Understanding the legel system before "casting Xingshu" which validated by comments on Jin state’s "casting Xingding" of Confucius and Shimo in Zhaogong 29 years.Traditional commentators of Zuozhuan thought "resolation case to decide but not in accordance with the XingShu" is "not enacting laws in advance but resolation penalty when encountering things".academics has a lot of controversy so far on whether there is a system or how to interpret and explain.Some scholars maintain to pay attention to native resources as Living-Laws and stick to the road of localization,or speak high of "the perfect combination of ritual and law",or rebuke angrily for tradition which labeled as authoritarian on how to learn fron traditional resource problems.In a word,any viewpoint has its certain limitations which have a big negative impact on the current grand cause of constructing socialist constitutional country.This paper use it as the topic,adhere to the marxist historical materialism,on the basis of drawing on research results of lots of ancient,modern,Chinese and foreign scholars,using "triple evidence method"which the historical documents combined with unearthed materials and ethnographic materials,carrying on the reasonable and moderate historical comparison between China and the west to hope to achieve the innovative theoretical results about the correct understanding connotations,characteristics and nature of the system "resolation case to decide but not in accordance with the XingShu".On this basis,hope that can further deepen understanding of the legal notion,correctly understanding the importance,the necessity and urgency of the construction of modern country under the rule of law;and provide the correct theoretical reference to the basic relationship between " ritual" and"law" so as to provide a historical reference to the current Socialist legal construction.First of all,this paper analyze the respectively appearance time and the changes in words meaning about the "punishment","law","code" three words,and lay a foundation on the concept of the words for full text study from the meaning change of words,And then 1 explain "resolation case to decide but not in accordance with the XingShu" On the basis of analyzing o "Shuxiang sending Zichan’letter"," the attitude of Confucius and Zimo on "Casting Xingding"by the state of Jin and all dynasties’interpretationson"Zuozhuan"and all dynasties’"The Criminal Annals".The core content of the letter of Shuxiang is very prominent that "Casting Xingshu" is basing on Xingshu by abandoning propriety so as to achieve the aim of employing the people arbitrarily,that it don’t need to be legal in Confucian times.When Confucius and Caimo satirized"cast Xingding" by the state of jin,the purpose of which Confucius opposed to "cast Xingding" is to maintain the rank order of " it is the rule that the order of the noble or humble is invariant ",Caimo regarded "take an unauthorized action on "cast Xingding";as violation of the tradition.We can draw the conclusion that "resolation case to decide but not in accordance with the XingShu" is really exist which Combined with the early common conditions of all nationalities.Then discusses the basic characteristics of the systemof "resolation case to decide but not in accordance with the XingShu",and think that there are characteristics of"soldier","punishment" no devided,randomness,cruelty,hierarchy and Bribery."soldier","punishment" no devided is a a general premise of knowing the legal system of Xianqin.The randomness include that a few noble master "the right to verdict by discussing",jurisdiction power and administrative power has not yet been,The original residual that bribes robbers,use ZhenJiu and makes the retainers to murder,and curses to kill is still exist,criminal law and civil law combinating,oral troth randomness,optionally and casually judge not according to the law in listening to the prison,reduce the penalty according to abilities.The cruelty include that "punishment" is the physical disability,used the cruel death penalty including dismemberment,Hai punishment,death by fire,Display the dead body for three days,wanton tortured the dead body,implicate his or her family when sentenceed.The hierarchy include that there is no prison between upper and lower levels,and decide the weight of the penalty according to hierarchy,nobles enjoy some privileges such as " Hanged by Dianren",Royal Clan have no castration,"Mingfu and Mingfu are not tired ",the majority often are sentenced to exile,the aristocratic identity is still valid,can take away the property,can restore its title and the field back."Take bribes"and "bribe" affect the fairness of listening to prison on the issue of "Huoyu".Then from several aspects including a standard uncertainty,the strengthen of the cruelty,the desalination of the hierarchy,the expanding of the joint punishment,compare the system of "resolation case to decide but not in accordance with the XingShu" and "cast XingShu(ding)".The Legalists opposed " following footsteps of former emperors","Rule of man" and allow private feelings to outweigh public duty,advocated not to follow the ancients and contemporaries,"All sentences by laws",public law make people know how to do or not within the laws,Rule by Law,enact a law by the monarchs,taking the official as the teachers,maintain the stability,the unity and authority of the law.And "Unify punishment","sentence persons including the favorite people,relatives and nobles","removing punishment by punishment",punishing light crime with severe penalty,apply the system of "Shiwu" of the military to ordinary life to kill three clan,associate officials and "Shiwu" in an all-round way.Because originated in the military,so it has inherently the advantages including intrepidity,not avoid the power and wealth,fairness,open just,but the shortcomings of the brutality.By comparison,it is known that "resolation case to decide but not in accordance with the XingShu" has the nature of unwritten law.On this basis,this paper analyzes and discusses some problems existing in the present research,such as"hanging laws on the Xiangwei","the genera of five punishments are three thousands"and applying relevant history materials in some legal textbooks.It was proved that the result of "introducing Confucianism into laws" is"replacing laws with Confucianism" and "corrupting laws with Confucianism".Because the rule of law is the best administrative pattern by humans which are able to select",it is humanity’s common civilization achievements,so we should not have national difference.In the later construction of the rule of law,we can correctly handle the relationship between ritual and law when we learn fron traditional law resources,and realize the grand target of building a socialist country under the rule of law only taking the rule of law as the center.