Research On Penalty System Influenced By Subjectivism During The Late Qing Dynasty And The Republic Of China

Since revising the law in the late Qing Dynasty, ancient China’s legal system which gives priorityto criminal law was broken, and the criminal law has gone through several changes. In the process oflearning foreign criminal law, we have directly learned from Japan in many ways. The end of the19thcentury was subjectivism vigorously developing stage, and a large number of international students inChina went to Japan to study. Therefore, China’s penalty system of the late Qing Dynasty and theRepublic of China has obvious characteristics of subjectivism.Currently, the study on law of the late Qing Dynasty and the Republic of China increase gradually.There is a paper reviewing subjective and objective doctrine argument during the period of the Republicof China. There is a paper making comparison of condemnation and sentence in the Qing Code and twocriminal codes in the Republic of China. Also there are studys about the prison system and trialorganization in the Republic of China. In2010, Taiwan scholar Mr Huang yuan sheng publishes hishistorical data collection and comments on criminal law from the late Qing Dynasty to the Republic ofChina, and this book helps us have a better and general understanding of criminal legislation during thisperiod. In my master thesis, I mainly compare the penalty provisions changes, hoping understandsubjectivist influence on and contribution to the penalty system.The paper mainly consist three parts: the first part is subjectivism dissemination in the period of thelate Qing Dynasty and the Republic of China; the second part is reflection of subjectivist influence onpenalty system; the third part is influence by subjectivism on penalty system in the period of the lateQing Dynasty and the Republic of China.In the period of the late Qing Dynasty and the Republic of China, the dissemination of subjectiveideas has a close relationship with the international students in China learning eastward in Japan, andwith Chinese social condition. The second part base on the books written by scholars who living in thatperiod and the changes in law. In penalty setup, traditional system is abolished, and new system whichconsist principal punishments and accessory punishments is established. There is discussion about thenecessity of death penalty. Freedom penalty grade is abolished and fine punishment is established. Andtransition between freedom and fine penalty is established. In penalty’s application, punishmentstandard is changed. Regulation of recidivist is constantly improved. Judges need pay more attention tothe subjective status of the criminals in penalty deduction. In the execution of punishment, probationand parole system are established. The applicable object of probation is changed, in early stage,criminal’s personality was not considered, later, judges have discretion in probation. Parole condition isdifferent from foreign countries. In elimination of punishment, expands the reason for aging stop. Theinfluence of subjective includes mitigation of punishment, change of traditional thoughts, attention tosocial foundation and rationalization of the penal legislation, discretion and execution.Nowadays, we have consensus on punishment mitigation, we need have new realization aboutsubjectivism, and summary the experience of penalty’s legislation during the period of the late QingDynasty and the Republic of China.