| Lev Nikolayevich Tolstoy,one of Russia's greatest writers and thinkers.His position in the literature history of the world is universally recognized,but his ideas about the law and the history of the law in his time has not received the attention that deserved.The "resurrection" published in 1899 is the most talked about by all the narratives of Tolstoy later,and is regarded as his later masterpiece and the most famous of his literary works.This article is based on Tolstoy's novel "resurrection" as the basic analysis material,the second half of the 19 th century Russian criminal justice system research.The research is the branch of "law and literature"-"literature in the law",which can be divided into two kinds,one is the jurisprudence interpretation,the other is historical research.The type of research in this article belongs to the historical study of the specific legal and legal phenomena contained in literature.Studying history can take a variety of perspectives to approach objective reality.Because "according to the point of view,no one will directly observe the reality as a reality itself,and in their own tendencies to close to reality,which contains their own assumptions and preconceptions.This paper is divided into six chapters:Chapter One why choose Tolstoy's "resurrection",Highlight that he is a faithful historical person,The traditional influence of the notes and diaries of Tolstoy and the Volkanski family,He developed the habit of keeping his diary in his life;He knows the law.He has received systematic legal education in college and has studied the legal and legal theories of the country.He has had the experience of legal practice,served as a security mediator,juror,wrote a complaint for the farmers,served as defender;He is a great writer and has a record habit of sixty years,and the source of his creation can be traced back to his notes.Super writing ability and lasting record habits make his articles in the details of the degree of distortion is relatively small,the ability to restore more details;He is a noble man,has a very valuable honest honesty,not because they do not like some people or some things deliberately fabricated the story to be slandered;Indifferent fame so that he will not suffer,can bravely express the truth;He is a typical Russian intellectual,although it is always part of the ruling class,but the basic standing on the opposite side of the government,is a "dissident",which determines that he will not deliberately beautify the government.These can explain to some extent that Tolstoy is a very good record of legal history."Resurrection" is Tolstoy's novels based on real cases,based on a real case from Koni,a prosecutor in the Petersburg district court.In order to make the novel truly credible,Tolstoy in addition to reading a large number of cases of the original archival material,collecting a variety of cases of news reports,but also in-depth field investigation.He himself served as a juror and had been a defender.In the writing process has repeatedly to the court to attend,visit lawyers,judges and so on.In order to clearly understand the lives of prisoners,he even tried to visit the prison.Also asked the warden to their own home to proof,the novel's many unreal details of the changes."Resurrection" in the judges,prison officials,revolutionaries,men and women prisoners and other images,are writers in the real life to learn from.The real story,the real character prototype and the experience of their own in-depth life,is the work of those meticulous description of the objectivity of the guarantee.Tolstoy in the novel in the details of the demanding is also reflected in the circumstances of the circumstances of the episode and the same age background consistent with the various systems,events and so on.By our research: "Resurrection" in the Masi Lova accused of poisoning the death of the case occurred and the trial of the time is April 28,1889.According to our preliminary statistics,"Resurrection" involved in the criminal justice system,civil justice system and then a variety of social management system case 50,and made a form.These cases not only have important historical value for us to study the social situation at the end of the period,but also make it possible to explore the "resurrection" from the perspective of legal history.Chapter two The wise prophet is still pedantic——Tolstoy 's political and legal thought,Systematically discusses Tolstoyism and its political and legal aspects.The ideas and thoughts expressed in the works of Tolstoy are called "Tolstoyism".Although it is called "doctrine",but in fact did not form the ideological system,mainly because he himself is not keen on this."Tolstoyism" can be briefly summarized as three points:Not to violence against evil,moral self-improvement and love.As one of the pillars of Tolstoyism,"not to violence against evil" in its political ideology occupy the central position.Tolstoy's political ideology mainly includes: violence is the basis of all countries(government),the state(government)established on the basis of violence,by violence to maintain;Violence of the state(government)is not only a simple and naked repression,but also by the "hypnotism" of the violent,"intoxicated" to turn the people into violent complicity;Democracy is still not out of violence,constitutional democracy is essentially "constitutional slavery." In his view,the evil of contemporary society lies in the use of violence,in order to achieve real freedom and human liberation,it must be in any case to stop using violence.Tolstoy advocated the elimination of the government in the form of nonviolence to achieve freedom and liberation,so he did not agree with Russian anarchism,revolutionary claims and socialism.In reality,he is obviously too extreme for violence and full denial of the government,but we have to admire the deep insight into the Western-style democratic crisis as early as more than a century ago.The core of the law of Tolstoy is his natural law,and the law is divided into the law of God and the law of man in Tolstoy,and he sometimes uses natural law to refer to God's law.God's law occupies a central position in Tolstoy's political and legal thought,and all critics of human law are based on God's law,and all new worlds look and imagine are based on the law of God.He realizes that human law is inseparable from violence and is endorsed by opposing violence and then drawing laws against all man.The law of man is the denial of the law of God,the law of God and the law of man can not be obeyed at the same time,obeying a necessity that is bound to the other.Human law can not give people freedom,only complete and only obey God's law in order to obtain real freedom.He divided the "prisoners" into five categories according to the cause of the crime: The first category is simply innocent,is the victim of the court's fault.The second category is in such as anger,jealousy,drunk and other special circumstances of passion crimes.The third category is those who have completed some of the behavior that they seem to be ordinary in their own,but those who act in the eyes of the legislator should be punished.The fourth category is because "morally higher than the social average was classified as a crime." The fifth category is some "almost" in any society will be considered "fallen and corrupt" people,that is,Long Brosso called "criminal type." Tolstoy believes that the modern society of criminal means of transformation such as imprisonment,exile is simply useless,invalid.By punishing the bad guys to make others happy is the superstition of the state system.If you do not save the soul first,then all the auxiliary help measures can not be effective.third chapter Father and son reform —— "Resurrection" of the times background.The judicial reform of Alexander II and the "anti-judicial reform" of Alexandria were discussed.In 1861 the Tsar Alexander II carried out the top-down serfdom reform,and the abolition of the Russian serfdom made the necessity of judicial reform immediately highlighted.November 20,1864,the tsar officially signed the decree,promulgated the "judicial decree." Russian justice has entered a new period of historical development,so that Russia's backward judicial system face new,even in many ways until today still a huge impact.The main changes in Russian justice are:1.judicial independence is the most important principle of judicial reform,but also the most important changes in the Russian judicial system.2.Most cases achieved a trial open.Judicial openness not only promotes justice,but also helps people respect the law,is aware of the authority of the law,enhances people's awareness of the law,helps prevent crime and reduce the incidence of crime.3.Civil and criminal litigation adopts the principle of defensive litigation.4.Establish jury system and lawyer system.Alexander II these reforms brought about rapid economic development,but did not bring social stability.The whole social assassination activity prevailed.Known as the "liberator" of the tsar Alexander II after the reform has experienced several assassinations.From the second half of the 1960 s to the early 1980 s,The Russian state and society that are in the quagmire of terrorism are almost paralyzed,which seriously hampers the normalization of reform."March 1 incident" after the Alexander III for the reform of the adjustment efforts have increased significantly.On April 29,1881 the new tsar issued the edict "The monarch despotic unshakable",the edict was supposed to legally declare the Russian empire to turn to reactionary.The "anti-reform" in the 1980 s and 1990 s was carried out in several ways: the implementation of justice,land,urban anti-reform,the recovery of public education in the field of part of the autonomy,to strengthen the publication of inspection,restrictions on the rights of ethnic minorities.Nowadays,in the historiography,the evaluation of the anti-reform policy has changed from the perspective of the Soviet Union.A series of measures taken by the Alexander III government took into account the revision of the liberalization of Alexander II in the complex socio-economic and political laws of Russia in the 1970 s and 1980 s,Through the "improvement" of the judicial system to achieve a certain "harmony",the purpose is to restore the national legal system,economic prosperity and social stability,rather than restore the old feudal Russia.In some of the Russian monographs published in recent years,it was only time-bound in the 1980 s and 1990 s to use the name of anti-reform.Chapter Four The Criminal Justice System of Russia and Russia in the Second Half of 19 th Century.And compares the judicial reform system before and after the judicial reform in 1864.By Peter I,Ekaterina II and so on.Several generations of tsarism in the judicial system reform,to 1864 before the judicial reform of the Russian criminal justice system basic situation is as follows:1.The first trial of the judiciary: township and village farmers special court is the first instance of the state-owned farmers judicial organs,responsible for the small litigation and minor criminal proceedings,other levels of the first instance of the judicial organs of the county court.2.The second instance judicial organs: each province set up higher criminal court and higher civil court,as the second instance judicial organs.Supreme Judiciary: The Senate is the highest judicial organ in the period of Emperor Russia,handling various cases according to the appeal and appeals process.November 20,1864,the tsar Alexander II ordered the Senate,to all Russian subjects declared judicial action Judicial reform fundamentally changed the structure of the Russian judiciary,procedural law,but also partially changed the substantive law.Judicial law embodies the principles of modern justice system: judicial independence;equality before the law;oral litigation,trial open,debating litigation;presumption of innocence.The judicial system after judicial reform is as follows:1.Set up magistrates in counties and cities to handle minor criminal cases.By a judicial district of all magistrates of magistrates composed of magistrates is the magistrate of the appeals body.The judgment of the magistrate's assembly is the final judgment.It is only possible to appeal to the Senate when a magistrate court appears to have violated the procedural requirements or wrongly applied the substantive law in the case trial.2.Ordinary criminal judiciary: criminal and civil cases that are not under the jurisdiction of the magistrates' courts are tried by the district courts.District Court,the High Court,the Senate Criminal Appeals Chamber form an ordinary criminal justice organ.Judicial reform to establish the principles of the basic system to maintain the end of the empire,but there are some deviations from the early reform of the principle.In the judicial system there have been changes in the direction of liberalism.Chapter Five The jury system and the lawyer system in the second half of the 19 th century.Because jury system and lawyer system is considered to be the most important system of Russian judicial reform in the second half of the 19 th century,it also occupies a very important position in the novel "resurrection".The idea of joining the jury court in the Russian judicial system was raised in the period of Ekaterina II until judicial reform was achieved in the 1860 s.The development of the jury court in Russia has gone through a process of establishing a contraction and recovery.It was not the tsar,but the October Revolution of 1917.The jury has a very detailed provision for the jurors,including the qualifications of the jurors,the form of jurors,the rights,duties and responsibilities of the jurors.In the second half of the nineteenth century,the Russian society had a heated debate on the jury system.The questioning and opposition to the jury system in society is mainly focused on two points:1.The farmer becomes the subject of the juror.The high acquittal rate and the unpredictability of the verdict.These questions caused the jury to be abolished at the end of the nineteenth century,and Coney was the main defender of the jury system.His excellent defense of the jury system determined the retention of the jury system in Russia.There are lawyers in many episodes of "resurrection",although Tolstoy is basically a negative or dislike attitude for several lawyers in it,but readers from his description can still objectively recognize The Important Role of Lawyers in Judicial Life.Before the judicial reform of 1864,the modern sense of the lawyer system did not exist in Russia,at best,but the prototype of the lawyer system or budding.At the beginning of Alexander II,the lawyer system was very exclusive.Konstantin's support for open bureaucrats and Western judicial models became an important factor in the final determination of Alexander II's introduction of the Western justice system into Russia's determination.Judicial reform The lawyer system established in Russia is mainly transplanted from Western Europe,but it incorporates many different contents.Russian lawyers,in addition to "sworn agents",include private agents,alternate members of the judiciary and sworn agents assistant.The lawyer is governed by the sworn agent committee and the high court.In the tsar dictatorship,lawyers are important defenders of individual rights.In the criminal proceedings is particularly evident,on behalf of individual lawyers bravely stand on behalf of the government's public prosecutor's opposites,in order to avoid individual basic rights by the government against the fight.However,the lawyer's function is often not recognized for the community,the social image is poor.Criticism of lawyers is mainly concentrated in the lawyers group of poor character,low quality,high fees and other aspects.In the 1870 s,Russian lawyers were a brief spring,when some political cases were tried.Russian lawyers,through their own defenses,made the defendants free and fully demonstrated their talent and the justice they wanted to see.But after the 1878 Chasulic case,the government issued a decree to deal with political cases by a special court,and the lawyers lost the stage that could quickly expand their influence.The modern lawyer system created by the judicial reform has had an important influence on the social development of the late imperialists and Russia: The lawyer system promotes the development of the economic society;the establishment of the lawyer system helps to raise the people's legal consciousness.Chapter Six Ordinary criminal justice procedures——To "resurrection" in the material as an example,This chapter mainly uses the relevant cases involved in the "resurrection" novel to control the relevant laws of the Russian government in the second half of the 19 th century.The main line of the novel is the process of Masi Lova's poisoned murder businessman Smerekov from trial to execution.The novel is divided into three volumes,from the criminal justice point of view,it is the case of the three stages,namely,trial,appeal and execution.Through the control can be found,the second half of the 19 th century Russian judicial officials at all levels are strictly in accordance with the law.In order to further confirm Tolstoy in the "resurrection" on the Masiluo Wow case trial process and the real scene of the degree of agreement,but also through a real case Chalu Sidi assassination of the Trevor case trial process recorded.The Chasulic case was seen as a landmark case in the history of Judaism,which was known as the culmination of the jury trial and the turning point of the jury system.Shortly after Chasulic was acquitted,the tsarist government The enactment of a decree further restricts the scope of application of the jury court,and since then there is no further political case to be heard by the jury court.Once the criminal judgment has legal effect,it should immediately enter the executive process.Russia's penal system has been in constant change.1832 "Russian Empire law compilation" for the first time the penalty is divided into 10 categories.In 1885,the Penal and Probation Code was amended,but it still did not change the rigor of the imperial and Russian penal system,including death penalty,political death,deprivation of public power,physical punishment,labor,exile,charge,deprivation of liberty,And seal the movable property to the national treasury and the church."Resurrection" involved in the most penalties are hard labor,exile.The rest of the penalties involved include death,physical punishment,imprisonment.Russia's Siberian exile and hard labor world-famous,Siberian exile began at the end of the 16 th century "bronze bell exile",the second half of the 17 th century,for economic reasons Siberian exile gradually became the government forced immigration development Siberian economy means.By the end of the eighteenth century,the exile system became more chaotic,and the application of exile had great uncertainty and arbitrariness.In the 19 th century,the number of exiled offenders increased dramatically.Exile includes different kinds of fixed execution procedures.The distribution of ordinary criminals is different from that of political prisoners.The treatment of political prisoners is obviously superior to ordinary criminals."Resurrection" Although Maslova is an ordinary criminal,but because of the help of Nekhludov,she is mainly in the way of exile with political prisoners,so the main discussion of political exile.Conclusion: Through the understanding of Tolstoy's personal experience,character and his thoughts,the analysis of the process of "resurrection" and the description of the contents should be made sure that Tolstoy's "resurrection" truly shows that Russian society and Russian justice System style.Objectively examine the various bureaucrats in the "resurrection",examine the handling of each case from a legal point of view,and even the implementation of certain management systems,it will find Russia in the second half of the nineteenth century,despite the difficulties and twists and turns,The direction of the country. |
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