| Bo An Hui Bian is one of the most important collections of case studies of the legal history of the Qing Dynasty.It recorded nearly 400 cases during the QianJia period.Each case first described the original case presented by the local supervisor and then described it.Then,the various internal and external suggestions are presented.So it is possible to clearly read from one case why the case has been refuted,whether there are relevant laws and regulations that have been amended,where they have been modified,and why they have to be modified.The facts of the case were clear at a glance and the changes in the laws and regulations emerged clearly.There are many types of Li in the Qing Dynasty,which can be divided into: Tiao Li,ShiLi,and ZeLi.The Tiao Li mainly refer to the norms of criminal law,which are usually co-editioned with laws,and are formally codified after the law.This article examines the creation of new cases in Bo An Hui Bian,and since the cases in the book are almost all criminal cases,follow-up Li based on these cases are mostly Tiao Li.In the Qing Dynasty,the Li that was widely quoted in the judicial decision was determined by the stability of the law itself and cannot be revised frequently.The flexibility of Li justifies the shortcomings of the law.Just as the preface to Bo An Xin Bian : "The law is not easy formed.Li changes with time.Judicature can't live without both of them." The creation of the new Li through the determination of individual cases is one of the important sources of Li of the Qing Dynasty.This paper has collected a total of forty-eight cases related to the creation of new Li in Bo An Hui Bian.Through summarizing these cases,we examined from a microscopic point of view the procedures of Li generation in the Qing Dynasty,the entry point to formulate new Li in legislative technology and legislative ideas.The procedure for the new case was initially based on some serious cases of uncertainty about how to judge.These cases were basically because the laws and regulations did not have special articles or relevant laws and regulations had been amended,and the basis for the finding was difficult to determine.Then reported to the central judicial authority.Most of the time,the Ministry of Penalties will take over these cases and carry out meticulous research from form to content,and carefully examine the reported and drafted charges and penalties of the local authorities.If it is found that new cases need to be drafted to allow the judges to be heard,they will play the emperor.A new case will be drafted and will be adopted by the emperor.If the Ministry of Justice verifies the circumstances of the case and crimes,it does not find it necessary to formulate new cases.However,after reporting to the emperor,the emperor thought that it was necessary to formulate new cases,or the emperor could directly formulate new cases and decreed that it would pass,or Once again ordered the Ministry of Justice to make a new case.It was the emperor.In short,the last step must have the emperor's decree to have the final generation of new cases.The examination of the entry point of the new case in the legislative technology can be roughly divided into two categories.One is to break in from the subject of the crime,and the other is to cut in from the perspective of facilitating the decision of the ruling.In many cases,laws play a role of supplementing,refining or even expanding.From what perspectives a new example should be developed,it is a technically important issue.Judging from the many cases in the Bo An Hui Bian,it can be seen that the subject of the crime and the ruling of the decision are two excellent entry points.The main body of the crime,namely the perpetrator,the formulation of many new cases itself is centered on the provisions of the subject of the crime,in order to distinguish the different subjective viciousness of different crimes in a certain type of crime,or to be the first or the second in the crime,it is necessary.New regulations will be created to specify the rules.In addition,for certain special subjects,such as monks,banner people,etc.,new cases are also required for special regulation of their behavior.As for the consideration of advancing the ruling,it is to consider the issue from the perspective of judicial practice when formulating new cases.Differences in the severity of crimes are regulated by well-organized cases.In the determination of the case,it is not necessary to over-rule the legal text,and sometimes it is necessary to pay attention to the original meaning of the statute so as to prevent the failure of the law.The formulation of some new cases is in itself to take into account the need to facilitate the reference of local governments,prevent local confederation of legal texts,and mislead the wrong judgment.Finally,it is the exploration of the pursuit of new ideas in the legislative concept.The generation of new cases is bound to be influenced by the mainstream ideology and culture at that time.The pursuit of this kind of legislative thinking reflected in specific cases can be summarized as follows: First,to stabilize the society and ensure long-term stability.When an atmosphere needs to be rectified or important issues involving people's livelihood need to be regulated,it is a good idea to formulate cases that are suitable for the time.Second,the sentiment and the law allow for harmony and the golden mean.In the balance of work and experience,balance between reason and jurisprudence,the creation of new cases has reached a "balance" requirement.Third,the punishment for defamatory martyrdom and blasphemy are serious.Those who treat vicious people must be punished with heavy penalties in order to refrain from violence and refrain from accepting adultery.Fourth,punishment-based,both education.Treating offenders,the new case is still heavily penalized,but it will also consider persuading its repentant factors.Fifth,be cautious ethics and moral principles.Ethical morality plays an important role in Confucian culture.The judgment of a case and the formulation of the new Li are all produced under this cultural background and are bound to be affected by it. |
PDF Full Text Request