An Empirical Study On Local Judicature In The Qing Dynasty

In the Qing Dynasty(1644-1912),the real manipulators in the local adjudications were the legal assistants who seemingly assisted the local officials in hearing the cases in an unofficial status(legal assistants).This made a characteristic in the history of Chinese law.Because the legal assistants actually controlled the local adjudications,albeit behind the scenes,it is appropriate to do empirical research by analyzing the contents of some books written by the legal assistants and some cases tried by them.Besides the preface and the conclusion,this paper consists of five chapters,including 1)The Local Judicial Organ and Function in the Qing Dynasty;2)The Legal Assistants' Obligations in the Local Adjudications in the Qing Dynasty;3)The Principles of the Local Trials in the Qing Dynasty Generalized from the Practice of the Legal Assistants;4)The Value Orientation of the Local Adjudications in the Qing Dynasty embodied in the Practice of the Legal Assistants;and 5)The Association and the Enlightenment of the Local Judicial Practices in the Qing Dynasty.Chapter I The Local Judicial Organ and Function in the Qing DynastyThis chapter is to introduce the organizations and jurisdictions of the different levels of the local judicial organs so as to provide the background knowledge for the research of the local judicial practices in the Qing Dynasty.Firstly,this paper holds that there were four trial levels in the local judicial system in the Qing Dynasty:county level,prefecture level,provincial level and ministry level.Next,this paper introduces the judicial function of organs of different trial levels.Then,this paper discusses the case transfer system in the Qing Dynasty,including the case transfers initiated by the trial bodies themselves and the case transfers triggered by the appeals initiated by the litigants and their near relatives.The local judicial organizations in the Qing Dynasty and its operation showed that the government attached much importance to the supervision on judicial activities of major criminal cases and the notion of discreet penalty,and cared much about controlling wrong verdicts and safeguarding social stability.Chapter II The Legal Assistants' Obligations in the Local Adjudications in the QingDynastyFirstly,this paper introduces the beginning of the legal assistant system and how this system thrived.It is believed that it was the following reasons that objectively promoted the development of the legal assistant system:the number of the cases increased very fast while the number of judicial assistants to the officials decreased;the officials had not enough legal knowledge while the law system and the cases were very complicated;the value orientation of the officials and the need for restricting the power of the staff of the local governments;Intellectuals could get a handsome income to act as the legal assistants while only a small portion of the intellectuals could pass the imperial competitive examination and become officials.Next,the paper centres on introducing the judicial obligations of the legal assistants,holding that the legal assistants actually participated the whole process of the criminal cases and the whole process of part of the civil cases.The job responsibility of the legal assistants usually included commenting on acceptance or refusal of a case,preparing for trial beforehand,judging behind the scenes,making documents of opinions on judgement,revising and setting aside the decisions of the lower organs,and explaining the doubt to the superior organs.This paper gives a detailed description about the above activities.Chapter III The Principles of the Local Trials in the Qing Dynasty Generalized from the Practice of the Legal AssistantsDuring the local trials in the Qing Dynasty,the legal assistants sticked to the following principles:Adjudging by Law,Going After Evidence and Facts,Being Lenient and Prudent in Penalty.This paper elaborates the Principle of Adjudging by Law from the following aspects:the relationship of law and regulations,the footing and the function in trial of law and regulations,adjudging by law and regulations,adjudging by invoking law and regulations,adjudging by grasping the spirit of law and regulations.The Principle of Going After Evidence and Facts was demonstrated as follows:attaching much weight to the confession,but not readily believing it,laying emphasis on collecting and ascertaining material evidence,preventing evidence from being falsified by minor functionaries,making decisions beyond all doubt.China has always maintained the legal tradition of being lenient and prudent in penalty.The legal assistants,influenced by the thought of blessing reward,one doctrine of Buddhism,particularly insisted on such tradition.The famous legal assistants carried out the Principle of Being Lenient and Prudent in Penalty through their practices.In the judicial practices,they often thought much about the interests of the litigants;they did not punish innocent people simply because these people were relative of or in close relationship with the criminals;they did not advocate extorting confessions by tortures;they gave serious thought about the death penalty.Chapter IV The Value Orientation of the Local Adjudications in the Qing Dynasty embodied in the Practice of the Legal AssistantsThe legal assistants had a special social status and at the same time,they were greatly influenced by the traditional Chinese culture.Therefore,in the process of handling suits,the legal assistants would devote themselves to supporting their employers,try their best to keep the balance among emotion,reason and law,and try to stop the suits or settle the disputes without filing suits.The legal assistants were paid high salaries and their performances would even influence the lives and properties of the employer's family,so the legal assistants must consider the safety of their employers,accept the judicial supervision,and keep the order of governance.Because the notions of emotion and reason filtered into people's minds,and the legal assistants were followers of Confucius in essence,the legal assistants managed as best they could to make a balance between emotion,reason and law in their judicial practices.They even gave decisions by emotion and reason,not by law,under the condition of conflict between emotion,reason and law.They might interpret the Confucian classics for judging some problematical cases in accordance with the value judgement in their minds.For the reason of the historical tradition to aspire after the state of healing disputes without lawsuit or no lawsuit,and the performance appraisal of officials,the legal assistants acted with great care to dismiss or accept cases.They attached great importance on mediating and healing disputes without lawsuits.They tried their best to stop litigiosity of the legal pettifoggers,and to advise the public to settle disputes without lawsuits.Chapter V The Association and the Enlightenment of the Local Judicial Practices in theQing DynastyBased on China's national conditions,the beneficial experience drawn from the China's traditional legal cultures will be helpful to develop the modern legal civilization with Chinese characteristics.To promote today's rule of law,according to the experience from the local judicial practices in the Qing Dynasty and today's social reality,this chapter proposes the following suggestions:adopting Li(which was the proprieties governing China respectively or in unity with law for thousands years,including the Qing Dynasty)as laws;introducing the system of precedent;and being prudent in death penalty.Being the tradition and a feature of Chinese laws,the combination of Li and Law should get reasonable room.By adopting Li appropriately as laws,we can strengthen the combination of Li and laws and the combination of rule of law and rule of virtue:laws can keep the society in order,while virtues can warm the people's hearts.on the basis of the experience drawn from Chinese legal tradition of cases compilation and integrating leading cases into laws,and the legal practices of Taiwan and Hong Kong,we may cautiously accept and promote the system of precedent in order to overcome the weakness of the statute laws which sometimes cannot catch up with the development of the society,which may make the laws and the society interact in a timely and flexible way.It is the embodiment of the spirit of the modern rule of law,and the tendency of penalty all over the world nowadays to be lenient and prudent in penalty,especially in death penalty.We should further improve the system of death penalty,and strictly restrict the scope of and the conditions of death penalty.