The Embodiment Of The Public And Private Notion In The Law Of Qin Dynasty

The subject investigated of this dissertation is the literature of legalism in earlier Qin Dynasty and the . By means of the investigation of the public and private notion and integration it with the to analyze the idiographic embodiment of the public and private notion and it works on the law of Qin Dynasty and the law in aftertime.The first part is the summarize of the public and private notion, it is also the basal content in this thesis, and it was expatiated from two aspects: first is the paraphrase of the public and private notion. Summarizing the manifold means of the public and private notion in earlier Qin Dynasty, and analyzing the process of the evolvement of public and private notion. It is a process of notion from the human, substance and the relation to the notion of the morality and the worthiness, and to the concept which includes the political and the juristically conception, and from material to abstract. Analyzing the worthiness and the relation of"the public notion"and"the private notion", and comparing the dissertation of scholars of earlier Qin Dynasty. Accordingly, arrivalling at a conclusion which the scholars serving as"the public of notion"a starting point happened to coincide, and came into being a thinking model of"founding of the public and the liquidation of the private". Second is the introduce of the public and private notion of the legalism. The academic basis of the public and private notion of legalism is the theory of essentiality of the human, and the logistic jumping-off point is the notion of the emperor. So the legalism thinks that the meanings of the public notion are state interests, the emperor interests, and the law. And the conception relates to the politics, morality, and the law: the meanings of the private notion are the individual interest and are in contrast with the public notion. The relation between the public notion and private notion is: the public notion is the guide of value; the private notion will be spurned. This public and private notion of legalism is put into action in the law of Qin Dynasty.The second part is the idiographic embodiment in the law of Qin Dynasty. It is the primary coverage in this dissertation. First the jurisprudence emphasizes on the public law and underestimates the private law. The law of the Qin Dynasty gives priority to the public law, the private law is in subordinate status, and the relation which should be regulated by the private law was brought into the public law even. Second is the rights of notion emphasizes on the public law, underestimates the private law. The law of Qin Dynasty emphasizes on the management and masterdom of the public law, the private law is opposite which is the private obligation. So, the protection of the private rights is scarcity and indirect. Third the protection of the emphasizing on the public in interests and underestimates the private interests. The public interest is forgoing, the quomodo to acquire is various, protection of the public is comprehensive, but the protection of public interest must be as precondition of the private interest. Forth, the modality of the kaiserdom emphasizes on the state interests and underestimates the private interests; the two facts incarnate the relation between the emperor and the minister and managing the minister. Fifth, the other embodiment of emphasizing on the public in interests and underestimating the private interests. It can be divided to two aspects: first is the civilization autarchy, the theory of the legalism became the public opinion of the culture system; second is the morality, the law became the public morality, replacing the means of moralizing.The third part is the public and private notion of the legalism affected the law of Qin Dynasty. First is the positive influence, for instance, the notion of the state paramountcy and the rigorous management of the bureaucracy. Second is the passive influence, for example, the emperor as the private delegate have proceeded to extremity, and trampled the private rights and interest flintily.So the public and private notion of legalism is the clearest and the most unshaken in earlier Qin Dynasty. The notion of them as the classical dissertation is often cited. There are important relation between their notion of founding of the public and the liquidation of the private and the coming into being and development of the law of Qin Dynasty, which embodied in the law of Qin Dynasty. They have put suggest and the terms of settlement about the relation among the state, the emperor, the society and the individual guide of value and the standard of conduct. That is the law is one important part to balance the public and the private, and ensure the public carried out, namely, the achievement of the state interest and emperor interest. But the embodiment in the law of Qin Dynasty is the relation of the public law and the private law, the public rights and the private rights, the public interest and the private interest, the state interest and the private interest, all of them have the common character of feudalistic society in dealing with the public and the private rights. This illuminates that the public and private notion of legalism have influenced the law in Qin Dynasty and after the Qin Dynasty.