A Comparison Of Ming Li Of The Tang Law And The Current General Rules Of The Criminal Law Of China

The Tang Law is the earliest and the most intact feudal code of our country. The legislators generalized the experience of feudal legislation. They noticed the need of society at that time and dared to innovate, which made the Tang Law an intact and sobriety legal treatise. This has a far-reaching impact on later ages and ancient Asian countries. The Tang Law has 12 parts. The first part is Ming Li, which is equivalent to the general rules of current criminal law. This text regards MingLi as the research object and compares it with the general part of the current criminal law of our country. The author's purpose is to explore the enrich and precious law treasure while investigating criminal legal systems at all time and to inherit criminal law quintessence of The Tang Law critically, and expect to inspire and draw lessons to our country's modern criminal legislation to some extent. This text is divided into nine chapters. The first part is about the comparison of the structure and expression between the general rules of modern time and of Ming Li. First, the structure of Ming Li shows that "each social relationships adjusted by the criminal law is confirmed by the evaluation on its function among national life by the ruler", and that "the content related to emperors is placed on the front as the most important part". The general rules of our country's current criminal law arrange the structure according to the objective fact of criminal legal relations, crime, conviction, penalty, the measurement and the implement of penalty and the time limit. Secondly the clauses of The Tang Law related closely with the judicial explanation. First, the clauses of the Tang Law are precise. A lot of clauses are unable to be understood at all if without the judicial explanation and the content of system in the Tang Law is especially shown out because of the existence of the discussion. The main content of the current criminal law is stipulated in the text, while legal explanation only plays a supplementary role. Secondly, in form, the explanations follow the clauses of the Tang Law, while the legal explanation of current criminal law is issued for enforcement after the criminal code. Finaly, the expression of the current criminal law is accurate, standard ,general and concise. The second part is the comparison about the constitution of a crime. Through the comparison the author finds that the systematic theory of the constitution of a crime had not formed and there is no definition of the constitution of a crime in the Tang Dynasty. But the Tang Law included the phenomenon of it , for example, the intention and the negligence of crime, age , intelligence, spiritual state , impediment related to criminal responsibility ability. The third part is the comparison about complicity. Ancient understanding in complicity can be traced back to 3,000 years in China. At Tang Dynasty, it got further development and stated the definition of complicity clearly and regulated the classification, one's responsibility, and punishment principle ,etc. This makes the feudal criminal law system of complicity more intact. In comparing with the system of complicity of current criminal law, the authorfind that the stipulation on the escaping fellow has sure meaning of drawing lessons for modern criminal law because it can solve some problems, for example, the case to be pending for the moment for the reason of the escaping people of complicity. The fourth part is the comparison about the penalty system. The Author first introduces the structure and content of system of penalty of The Tang Law and of our country's criminal law separately and find that first, the change of the penalty system has reflected the development of mankind from wildness towards civilization. Secondly, on penalty construction, current criminal law is more complete and systematic . Third, the difference of the check of death penalty of criminal law reflects the purpose of "punishing crimes and ensuring human rights at the same time"in current criminal law. Fourth, the Tang Law seperates several grades of legal punishment, this kind of method has restrained the judge from judging freely and is useful to modern criminal law for reference. The fifth part is the comparison about recidivism system. The ancient regulation to recidivism system of our country is simple and careless to the modern recidivism system. It's composition with modern significance to the recidivism regulation, still confuse with the concurrence of offences. Stipulation in the Tang Law on "offence twice", "offence third", in fact is only a historical origin of recidivism system. The sixth part is the comparison about system of giving oneself up. In our country , the system of giving oneself up sprouted from the Xia dynasty and reached the comprehensive expression of condition in Tang dynasty. In this part, the author has analyzed the way that one gave oneself up in the TangDynasty, the condition, and the punishing principle. Then the author summarizes the giving oneself up system in modern time and the inheriting and development of the system from the Tang Dynasty. it reflect people purpose when it is to giving oneself up and according to understanding deepen, improved constantly. It reflects that the criminal legislation has already moved towards the scientific process progressively. The seventh part is the comparison about the system of meritorious service. The Tang Law does not use the terminology of " meritorious service ", but make the regulation in various degree to the punishment and the form of "meritorious service". It renders meritorious classification and less systematic , not very perfect for the limitation of history. Through the comparison of the form and consequence of meritorious service and display to render meritorious service, the author shows that the meritorious service of the current criminal law of our country is a independent and systematic one, and that today's legislative technology is superior to Tang Danysty.. The eighth part is the comparison about the punishments for plural crimes, which means how to fix the joint punishments of plural crimes committed by one person. The Tang Law has already had a more detailed regulation on the concurrence of offences. The similarities and differences of joint punishments for plural crimes of criminal law and of the current law reflect the improvement of modern criminal legislative technology. The ninth part is the comparison about the system of reprievement. This part narrates the reprieve system of the Tang Law and current criminal law of our country, compare the two and makes the conclusion that although with the same words, the reprieve of Tang Dynasty is different at essence and content.