Chinese Traditional Way Of Thinking From The Perspective Of Judicial Practice Of Qing Dynasty

In the late1980s, China set off study on thinking fiercely. Outstanding researchachievements sprung up since then. By far, there is only few interdisciplinaryresearch treatise combining scientific and legal thinking. Interdisciplinary researchmethod and literature research method will be used in this paper. The result ofscientific thinking is seen as the starting point. Combining with a large number ofdifferent cases on Department of Criminal Cases View, Chinese traditional thinkingmode will be explored, hoping to guide people proper value on Chinese traditionalthinking mode.Under the comprehensive effect of the natural geographical environment,home-country homogeneous institutional characteristics, economic factors andideological factors, the unique Chinese traditional thinking mode is created gradually.Generally speaking, Chinese traditional thinking mode has features of holism,image-analogy thinking, dialectic and practicability.These characteristics interrelateand interpenetrate, even interchange under certain conditions.According to the research on Department of Criminal Cases View, Chinesetraditional thinking mode, through splitting and recombining in legal field, mainlyembodies three characteristics, namely, harmonization, substantive and sentimentality,represented by judicial technology of analogous inference, penalty for incriminationand judicial philosophy of emotion-law coexistence respectively.The judicial technology of analogous inference was officially recognized by thelaw of Qing Dynasty. Its premise application is judging on indirect law. If judging onindirect law is used violating the law, the officer will be convicted of breaking lawsand sentencing the wrong case. So the procedure of analogous inference are able to becomplied. Exceptions appear under a few cases, in order to pursue penalty forincrimination and emotion-law coexistence. Analogous inference uses vertical logicinstead of horizontal linkages essentially, focusing on surface links between things, which is different from the analogy on the nature of modern criminal law, whoseemphasis is the similarity between cases in essence. Meantime, analogous inference isthe method that experience replaces concept, which addresses the problems what kindof important means can be used to solve legal loopholes and how the non-legalprofessionals, like literati, legislate and settle legal issues. But it also lead to rigoroussystem and difficulties to apply law and other issues, due to the absence of basic legalconcepts. Both penalty for incrimination and emotion-law coexistence are based onperceptions instead of rational logical reasoning, but slightly different. While penaltyfor incrimination is not concentrate on conviction, but sentence instead. The offenderwill be sentenced at the most appropriate punishment by the judge. The objectivefactors that will be considered by the judge are much more and more specific,including the special status of crime subject, harmful consequences, endangeringbehavior and chain of evidence, seeking correspondence between these factors andthe law. Among the factors, the highest priority are the special status and harmfulresults, followed by harmful behaviors, then the chain of evidence. Also, sometimescriminal motivation and subjective attitude are taken into account, with little impact.Judicial philosophy of emotion-law coexistence is one part of the penalty on theseverity of the offense, which is unique. Although emotion-law coexistencesometimes requires some considerations of the case, the considerations are mainly forthe judge to form perceptions services, rather than directly to find the premise for thelegal reasoning. There are mainly three ways achieving penalty for incrimination andjudicial philosophy of emotion-law, that is, analogous inference within legal scope,method of applying general prohibitions and settling a lawsuit according to law.Dominated by penalty for incrimination and judicial philosophy of emotion-law, thejudge dedicates to individual cases individually, in order to better achieve substantivejustice. In spite of the good intention of the legislators and the judiciary, the flexibilityof the techniques is worthy of recognition. However, due to the limitation of thinking,improper application of law and judicial injustice exist objectively. Chinese traditional thinking method should be critically inherited on the basis of adequatestudy.