Conflict Of Legal Culture Of The Late Qing Dynasty, From Morality And Law Reform Amendments To The Law In Dispute

The debate of etiquette and legal in the law amendment of the late Qing Dynasty can be specifically divided into four stages: the first is whether transplant the systems of lawyer and jury or not ,which is caused by Draft of Criminal and Civil Procdural Law. The second stage,caused by Draft of New Criminal Law of Qing, is the struggle of applying western legal principles or principles of decencies. The third one is the dispute that whether the decency articles of old law be revised into new criminal law or not, that is the dispute of adding the Temporary Statute into the new criminal law or not. The last stage is that should nationalism or family-oriented thinking dominate China's legislation.Holding Chinese legal culture view, the paper elaborates that the conflicts of Chinese and Western legal culture, arising from the struggle of etiquette and legal,is mainly showed in aspects of systems and concepts. As for the sytsems,there is a conflict between the integrated laws and each single law texts.The judicial system lacks the systems of counsel and jury. In addition,there is a conflict in the relation of the judiciary and the exective,to separate or not. The conflicts of concepts contain the following ones. The criminal punishment should be convicted statutorily or presumptuously. There is a conflict of the pan-ethical of law and the relative separation of legal and morals, and that of group-based and individual-based.The debate of etiquette and law,caused by the conflict of Chinese and Western legal culture, is based on the special historical background. There are tremendous social changes in the late Qing Dynasty. Politically,the locality is more and more independent of the central government. A large number of modern societies and social organizations come to the fore. In the respect of social economy,the modern business emerges and develops progressively. The modern city life is spread.While,the thought is influenced by the western learning, and the histric choice of "Chinese is the main stream and the Western is the supplement "is made.The debate of etiquette and legal ,a superficial debate,hides deep cultural conflicts and differences, which greatly influences the modernation of China's legal system.The formations of China's modern legal and justice systems have something to do with these conflicts and differences. At the same time, Chinese transform their legal concepts from advocating forefather's law to following the western law, from stressing obligation-based to valuing the individual rights.The people-oriented philosophy of the traditional legal culture is also quite characteristic.That is a step-by-step process that Chinese and western legal cultures now collide and integrate from the initial conflict. Rethinking profoundly of the struggle of etiqutte and legal in the late Qing is concessive to stuucturing Chinese-characteristic modern legal culture and promoting the process of China's modernation of legal system actively.