An Observation And Analysis Of The Punishment Of Banishment Of The Law Of Tang Dynasty

In this thesis, I selected Tang Lv Shu Yi which radiated the whole discussion. I analyzed the varieties and the application of the punishment of banishment in Tang Lv Shu Yi and research the characteristics and the regularities.The first part is a brief survey of the punishment of banishment .This part is composed of three parts: The first is the meaning of punishment of banishment of law in Tang Dynasty. There is two kinds of punishment of banishment of law in Tang Dynasty. One is normal punishment of banishment, the other is special , named the five kinds of special punishment of banishment. The normal punishment of banishment was divided into three grade: the exiles banished one thousand kilometers,one thousand and two hundred of fifty kilometers and one thousand and five hundred kilometers, this is normal rule. The five kinds of punishment of banishment is different from the normal punishment of banishment during the executing, which includes: one is banished because of his relations betray the country or the emperor; the descendants are banished because of fault; one is still banished when remit punishments and the punishment of banishment with extra servitude. Though the explanation of the normal punishment of banishment and the five kinds of special punishment of banishment, to make clear the concrete meaning of the punishment of banishment in these thesis. The second is the origin of the punishment of banishment. The origin of punishment of banishment has a long history. It experienced a long period of time from it was in rudimentary stage in Nan Bei Dynasty to the punishment of banishment became one of the feudal new five punishment. It has been fully developed in Tang Dynasty. The third is the changes of punishment of banishment during the compiling and revising of the law in Tang Dynasty. There are some partial changes is very important, which includes Wu De Lv, Zhen Guan Lv, Yong Hui Lv, Xian Qing Lv and Kai Huang Lv from Gao Zu Wu De year to Xian Zong Yuan year. We can know that the system of punishment of banishment perfects continuously in the course of modifying the law. Through analyzing the three point above, we can view the development of punishment of banishment from a historical angle. Hou Wei Lv is the origination, Hou Zhou Lv is the development, Kai Huang Lv finalized the design. Tang Dynasty succeeds to the institution of Sui Dynasty, but has some change. The punishment of banishment is more and more perfect because of modify the law so many times. From the first part, we can know the whole process of development of punishment of banishment clearly. Particularly, it is perfect continuously during the course of history.The second part is dedicated to the analysis of the varieties of the punishment of banishment. This part summarizes the punishment of banishment of every part of the law of Tang Dynasty by means of forms. The main crimes have been induced according to the forms. First is the crime of threaten the personal safety and property. There are sixty-eight items of accusation which is sentenced to punishment of banishment. But these cases quite a few were recorded. Second is the crime of the officeholders are venal and derelict.The third part is dedicated to the analysis of applying to punishment of banishment, and it is a normative analysis. This part analyses the Ming Li Lv of Tang Lv Shu Yi, in order to elucidate the executive methods and principles. It was divided eight point: first analyses the distance of banishment. The specific cases were induced and concluded a table. We can know that the punishment of banishment is not executed according the three grade in the law. And it appears that the law is out of joint the practical carrying out. Second is the investigation of the start of punishment of banishment. The exiles set out every quarter. But the deadline is different because the crime is different. Third are the relatives of exiles forced to follow the exiles. It includes the wives, ancestor and descendants. The husband declared sentence of punishment of banishment, the wives followed. But some special cases are exception, the ancestor and descendants followed the exiles voluntarily. Forth is that remits the punishment of banishment. It includes the conditions and limits. Only the exiles don't arrive at the banished place and still on the way. Besides, the limits are :1.It must be up to the standard of time and distance. 2.The exiles mustn't escape. Fifth is the execution of special subject. It includes 1 . The only son. If they were sentenced to punishment of banishment, they will still stay at the hometown. But they must be beaten with stick. 2 .One engaged in special occupation. Because of specialized skills, so, though they were sentenced to punishment of banishment, they still stay at the hometown and exempt them from slavery. 3.The recidivist. The recidivist should be banished and to be forced labors. The time must not beyond four years and the exiles mustn't be beaten with sticks exceed two hundred times. 4.The women. The women were avoid from banishment because of they are lacking in strength and power. But they must be beaten with sticks. 5.The old persons and children and the patients. Because they haven't the ability of responsibility, so lighten or remit their responsibilities. Sixth, forced to labor. The exiles were forced to labor. The normal punishment of banishment is different from the punishment of banishment with extra servitude. The former is forced labor for one year, the later is for three years. Seventh is that exiles were secure an official position again and the relatives return to their hometown. Eighth, the exaction of five kinds of the punishment of banishments. The five special punishment of banishment is different form normal punishment of banishment :1.It can't be lighten and expiated. 2.The functionary deposed from government service. 3. Banishment. These punishments are more serious than the normal punishment of banishment. And there are many limits during the process of executing. Though induce these eight point, we can inquire into the whole process of executing of punishment of banishment.The forth part is the application of the law of Tang Dynasty of specific cases.we must pay attention to the treason but it is embodies rarely. This kind of crime is very serious and a lot of people will be involved in the matter. The punishment of banishment is more completable and perfect in legislation in Tang Dynasty. But there are still many problems in administer justice. This phenomenon is related to the stable society and the prosperous economy and the expanding of Ru Jia culture. First, the main legislative thoughts which is free from restraint bring up the content of punishment of banishment which is lacking in variety. The Tang Dynasty draw a lesson from Sui Dynasty's tyranny. So the law of Tang Dynasty emphasize on dealing with the crime leniently. Comparing with Sui Dynasty, the distance of banishment is increased five thousand kilometers, and the time is reduced in the law of Tang Dynasty. So the penalty of law in Tang Dynasty is softer than Sui. Second, because of the influence in Tang Dynasty has become a important supplemental means of propaganda feudal morality. The purposes of criminal law is not only punish the criminals and prevent the crime, but also educates and encourage the feudal morality. So it leads to the crime increased in the late Tang.In a word, the penalty as a governmental tool, which is executed, is not decided by the situation of social contradiction.