| This dissertation examines the categorization of homicide offenses and the treatment of criminal intent in China from the eighteenth century to 1949. Using a combination of local- and central-level court cases from the Qing dynasty and the Republican era, in conjunction with legal codes and the writings of jurists, this project highlights the complexity with which Chinese law addressed abstract concepts, particularly that of criminal intent. Criminal intent was an important category of analysis for Qing jurists, one conceptualized along a finely graded continuum of severity. Six categories of intent-based homicide were identified in the legal codes as the major homicide offenses. For the category of premeditated killing the intent to kill arose before the crime was carried out, whereas for the category of sudden intent killing the intent to kill arose only at the moment of the crime. Additional categories covered homicides resulting from an intent to harm but not to kill, and homicides committed with recklessness, through negligence, or by accident.; During the early years of the twentieth century, China initiated a series of sweeping legal reforms. For criminal law, this meant promulgating a new criminal code based on models from continental Europe, where recent legal codes were composed of general, principle-based statutes intended to cover all possible criminal situations. This first Republican-era code thus contained only two generalized categories of criminal culpability, intent and negligence, and demoted further evaluation of criminal intent to the sentencing phase of a trial. The new, foreign-based code failed to cope adequately with broad areas of late imperial Chinese law. As a result, much of Republican lawmaking became focused on modifying the new criminal code to re-introduce Qing statutory provisions. At the same time, Republican law in practice reveals judges using their newly expanded discretionary powers to nullify many of the remaining breaks with the Qing legal tradition. In many ways the continuities between Qing and Republican criminal law came to outweigh the changes, revealing a Chinese justice system, both before and after 1911, that defies assignment to binary categories of pre-modern and modern law. |
