A Note On The Understanding Of The Legal Provisions On The Death Penalty In Violence And Robbery In The Laws Explanation And Discussion Of Tang Dynasty

The purpose of this thesis is a textual research of the laws explanation and discussion Tang Dynasty. In the law of theft and robbery which is about the idiographic regulation of death penalty. It includes the distributing of the rules which relate to the death of penalty in this piece and in the genus accusal, and the case of reference of the rules, and the specific application of "Shi E" and some other details in the law. Trying to by dint of this to revert the relationship of bijection between the criminality and statutory penalty which is closed over by the numerous and jumbled code system, and describe the details of the setup of death penalty in the law of theft and robbery. The whole thesis was divided five chapters. Four chapters' legal rules' of textual research of the law of the theft and robbery in the laws explanation and discussion Tang Dynasty item by item, which is aggregate four sections, fifty-four items. It involves the concrete behavior in one item, one concrete behavior was corresponding a statutory penalty, the penalty of concrete behavior relate to the especial case and the rules which are referred to, and the applicable case and the penalty of especial case of "Shi E". I enumerate the rules deal with the above details item by item by tabulation. It is easy to depict the criminality and statutory penalty.The first chapter is the legal rules of textual research of the section one in law of the theft and robbery in the laws explanation and discussion Tang DynastyThis section is the seventeenth section in the laws explanation and discussion Tang Dynasty (there are thirteen items aggregately, ten items prescribe the death penalty): "rebellion and regicide "(the 248^th item); "insurgence"(the 251^st item ); "murdering the functionary"(the 252nd item); "the flunky murder the master"(the 254^th item); "murdering the immediate homicide"(the 256^th item); "prisoner delivery"(the 257^th item); "abducting the hostage for specifically aim"(the 258^th item); "killing three persons of a family and dismember corpses"(the 259^th item).The second chapter is the legal rules of textual research of the section two in law of the theft and robbery in the laws explanation and discussion Tang DynastyThis section is the eighteenth section in the laws explanation and discussion Tang Dynasty (there are nine items aggregately, seven items prescribe the death penalty): "putting something into others' ear hole or nostril or other orifices"(the 261^st item); "using the wizardry and poisonous insects to plot a murder"(the 262^nd item); "using the toxicant to plot a murder"(the 263^rd item); "he person with evil intentions killed others with wizardry"(the 264^th item); "excavating the glebe and seeing the cadavers"(the 267^th item); "spreading fallacies which is about the ghosts and god so as to intimidate the state's political power"(the 268^th item).The third chapter is the legal rules of textual research of the section three in law of the theft and robbery in the laws explanation and discussion Tang DynastyThis section is the nineteenth section in the laws explanation and discussion Tang Dynasty(there are seventeen items aggregately, seven items prescribe the death penalty): "stealing the royal signets and royal appropriative things"(the 271^st item); "stealing the inhibitive enginery"(the 275^th item); "disentombing the tomb"(the 277^th item); "robbery"(the 281^st item); "the functionary steals the property he charged"(the 283^rd item); "setting fire to a house to steal the owner's property"(the 284^th item); "assault and battery originally but despoil the property afterward" (the 286^th item).The fourth chapter is the legal rules of textual research of the section four in law of the theft and robbery in the laws explanation and discussion Tang DynastyThis section is the twentieth section in the laws explanation and discussion Tang Dynasty (there are fifteen items aggregately, six items prescribe the death penalty): "stealing the close relative's property"(the 287^th item); "the inferior relatives with the strangers together steal their own family's property"(the 288^th item); "involuntary manslaughter and injury because of rip-off"(the 289^th item); "abduction and sale the abductor"(the 292^nd item); "abducting the abductor's relatives"(the 294^th item);"a person who was sentenced to larceny three times still pilfer"(the 299^th item).During the textual research, some materials and methods were used thereinafter in this part:Consulted the archaic scholars' existent harvests of the laws explanation and discussion Tang Dynasty, to confirm the field and method of research in this thesis.Adducing the archaic scholars' bookmaking to illuminate the special means of legal words in the section of theft and robbery. For instance, "Ba li", "li have eight means", named "Yi, Zhun, Jie, Ge, Qi, Ji, Ji, Ruo" the eight words. The special means of these legal words have influence upon the difference of idiographic criminality in the law of Tang dynasty.Adducing all the general rules refer to death penalty in other section in the law of Tang Dynasty, to illuminate the principia which the section of the theft and robbery should follow. Adducing all the idiographic rules refer to death penalty in other section in the law of Tang Dynasty, to illuminate the instance of penalize when the peccancy in the section of the theft and robbery refer to other sections.By proving the different legal rules in the section of the theft and robbery mutually to illuminate the reference of the different behavior and the regulation of death penalty.Scanning the harvest of neoteric scholar in the field of the research of the law of Tang Dynasty, to supplement the blind spot and the deficiency in conclusion during the textual research.The fifth chapter bewrites the setup of death penalty of the section of theft and robbery in the laws explanation and discussion Tang Dynasty.First, as a section of the theft and robbery which is the fifty-four legal rules were divided to "the law of theft" and "the law of robbery". These two parts were divided to many kinds of accusation, and these accusations include the idiographic rules.The idiographic arrangement as follows:There are twenty-two items belong to the law of the theft, seventeen items of them prescribe the death penalty. This can be divided to five kinds:1. The regulations of punishment about the insurgence totalized three items: "rebellion and regicide", "the penalty embroil the families but not include the persons of cohabitation", "insurgence", two of them prescribe the death penalty: "rebellion and regicide" and "insurgence".2. The regulations of punishment about the crime of agitation and misleading totalized two items: "state the words include the intent of rebellion", "bruit the canard which disturb the governance of the state", one of them prescribe the death penalty: "bruit the canard which disturb the governance of the state".3. The regulations of punishment about the crime of hurting others by wizardry totalized two items: "using the wizardry and poisonous insects to plot a murder", and "the person with evil intentions killed others with wizardry", both of them prescribe the death penalty.4. The regulations of punishment about the homicide totalized nine items: ""murder the functionary", "murder the immediate family", "the flunky murder the master", "murder the ex-husband's parents", "homicide", "killing three persons of a family and dismember corpses", " putting something into other's ear hole or nostril or other orifices ", "using the toxicant to plot a murder", "devastate the cadaver cruelly", nine of them prescribe the death penalty.5. The regulations of punishment about the crime of disturbing the public security totalized six items: "prisoner delivery", "abducting the hostage for specifically aim", "the person's kinfolks were killed by the murder but the person became reconciled with the murder privately", "the murder must change his or her dwelling house after voluntary manslaughter", "excavating the glebe see the cadavers", "entering one's house without reason at night", three of them prescribe the death penalty: "prisoner delivery", "abducting the hostage for specifically aim", "excavating the glebe see the cadavers".There are thirty-two items belong to "the law of robbery", thirteen of them prescribe the death penalty. It can be divided six kinds:1. The regulations of punishment about the larceny totalized seventeen items: "staling the royal things which is used for sacrifice", "stealing the royal signet and royal appropriative things", "stealing the official document and missive and signet", "stealing all kinds of official document of command and the keys of the palace's door", "stealing the inhibitive enginery", "stealing and damaging the joss", "disentombing the tomb", "stealing the grass and trees of the cemetery", "stealing the killing the moo-cow and horse which is belonged to the individual or the government", "a person steals something who doesn't adjudge larceny according the amount but adjudge other accusal", "larceny", "the functionary steal the property he charged", "stealing the close relative's property", "the inferior relatives with the strangers steal their own family's property", "trafficking the governmental property with the flunky or the private property". Six of them prescribe the death penalty: "stealing the royal signet and royal appropriative things", "stealing the inhibitive enginery", "disentombing the tomb", "the functionary steal the property he charged", "stealing the close relative's property", "the inferior relatives with the strangers steal their own family's property".2. The regulations of punishment about the robbery totalized four items: "robbery", "setting fire to a house to steal the owner's property", "assault and battery originally but despoil the property afterward", "involuntary manslaughter and injury because of larceny", all of them prescribe the death penalty.3. The regulations of punishment about the joint larceny and the recidivist of larceny totalized four items: "joint larceny and criminate the larceny according the amount in the lump", "premeditated larceny together", "a person who was sentenced to larceny three times still pilfer", " both taking something in public and in private is delict ", one of them prescribe the death penalty: "a person who was sentenced to larceny three times still pilfer".4. The regulations of punishment about the crime of ransom, only one item: "taking others' property by intimidating". This item doesn't prescribe the death penalty.5. The regulations of punishment about the crime of abduction totalized three items: "abduction and sale the abductor", "taking the waif which is payed out the labouring", "abducting the abductor's relatives", two of them prescribe the death penalty: "abduction and sale the abductor" and "abducting the abductor's relatives".6. The regulations of punishment about the crime of shelter: "buying the person who is abducted the bargainee know the person is abducted", "one accepts the peroperty although he or she knows the peroperty is nonlicet", "someone commit larceny in the popedom or asking larceny to stay", none of them prescribe the death penalty.Second, the textual research of the specific rules of "the law of theft and robbery" item by item as a precondition, the rules of this section are classified in accordance with the different arrangement which is as a foundation, to elucidate the setup of death penalty in this section. "The law of theft" is gentle than "'the law of robbery" generally on the regulation of death penalty. But "the law of theft and robbery" as a whole the regulation of penalty is severer. The essential point of penalty in this section is rebellion and manslaughter and injury and this kind of crime. Killing or hurting the relatives is a essential point of this kind of crime. These two kinds of crime are both the felony belongs to "Shi E", which can't be remitted in most cases.It follows that, the system of legislation of the law of Tang Dynasty is in a jumble. It is dangerous to judge the setup of death penalty of the rules and attempt to count the numbers of the items of death penalty according to whether the regulation of death penalty crop up in the rules or not. It will close over the relationship of bijection between the criminality and statutory penalty and the voluminous system of the law of Tang Dynasty.