Analysis On Fa And Shu Penalty Of Ancient China

Direct Penalty is penalty applied directly, which has a direct corresponding relationship with the crime. Alternative Penalty is the alternation of the supposed penalty, which has a indirect corresponding relationship with the crime. These two categories of penalties are opposite. The supposed penalty is called Original Penalty, where there is a alternative penalty there is a original penalty. These two categories are coexisted. Regular Penalty is penalty can be applied directly, which could be a direct penalty or a alternative one. The discrimination between direct penalties and alternative penalties could only be accomplished in particular provisions. The criterion of direct penalty is the reality of direct application, while the criterion of regular penalty is the possibility of direct application. The establishment of alternative penalty system requires the relatively explicit system of original penalty, the relationship of exchange between the original penalty and the alternative penalty, and the alternative penalties can not replace the regular penalties completely, and it must be normative, not arbitrary. The strict conceptions are the necessary tools to trace the history of Fa and Shu and to define their legal natures in different periods. The conceptions of Fa and Shu were interchangeable, so we can not discriminate them by words only, but need analyze them in the particular contexts. Luxing of Shangshu established three levels of penalties to meet the needs of judiciary practice. The Five-Fa were not alternative penalties, but direct penalties. Through comparison of literatures, the forging time of Yaodian was around Qin and Han dynasties, and the "Gold as Shu" is not credible historical material, which can not be regarded as the origin of shu. The penal reform of Qihuangong changed the entire penal system, and there was no formalized law, therefore no explicit original penalty system, so it was not alternative penalty system. The earliest evidence of alternative penalty was found in the Qin Bamboo of Shuihudi. Shu of Qin-Han, Wei-Jin and South Dynasties had two aspects. There were alternative penalties, while Shumouxing referred to regular penalties. As Fa, Shumouxing were applied directly, and constituted a specific category of penalty, which occupied an important position in penal system. Prescription of alternative penalties in the law codes can be traced to Jin Dynasty, and attachment of alternative penalties to principal penalties Liang Dynasty. In the period of South-north dynasties, the modes of law code were different between the south and the north. The north law codes with Yuanwei Code as their model changed the penal system of Jin Code and established a new penal system of New-five-penalty. From then on, the status of Shumouxing as regular penalty was gone, and shu began to function as alternative penalty only. The law codes of Tang, Song and Ming all attached Shu to the Five-penalty, and prescribe its application in clauses. Ming Code was not amended during the whole dynasty, and there were many commentary books on it, which make it the best text for legal dogmatics. Shu of Ming considers social status or natural attributes of criminals, and the crime itself. The prescriptions of applicable penalties reflect represent the varying degrees of mercy. There are Shu of total crime and Shu of remainder crime, both have clear standards and strict methods of calculation. Some provisions of Shu prescribe negative elements which are mostly extreme serious crimes. The money of Shu generally goes to the government, while the Shu of accidental killing and wound to the victim like civil compensation.