The Legislative Characteristics Of Death Penalty System In The Qing Dynasty

As the oldest punishment in human history,the death penalty plays an important role in the development of human society.After the second world war,there was a trend of abolishing the death penalty all around the world.More and more countries abolished the death penalty in their codes,or it is no longer applicable in judicial practice.As a great power with death penalty,China's death penalty system reform has attracted many experts and scholars' attention.which also prompt the Chinese traditional death penalty system gradually to come into the scope of scholars.At present,the research focus of the academic circle on the traditional death penalty system is still limited to the application of provisions and the discussion of crimes.The grasp of its overall characteristics is still insufficient.For this reason,this paper takes the "Ta Tsing Leu Lee" as the research material,with the statistics to the 673 death penalty clauses of it,keeping study on subject identity and types of penalties and other elements.As the last feudal code in Chinese history,"Ta Tsing Leu Lee",the thought of "Study the laws of the Ming dynasty in detail and combine them with the original system of the Qing dynasty" make it as the concentrated embodiment of the traditional Chinese concept of death penalty.In order to grasp the overall characteristics of the death penalty system in the Qing Dynasty better,this article is divided into five parts to discuss the death-related clauses in "Ta Tsing Leu Lee" :The first part is literature review.It mainly introduces China's death penalty system from three stages: ancient,modern and contemporary,and combs the research results of traditional death penalty both inside and outside.China's death penalty can be traced back to the pre-Qin Dynasty,which has a profound historical and cultural heritage through thousands of years of inheritance and development.This chapter combs the death penalty in China from the time dimension and describes the development of it.Document analysis shows that contemporary China's action of reducing the charges of death in legislation conforms to the historical trend of it in the period of Han and Tang Dynasties.With the contemporary death penalty system becoming a hot academic topic,the study of traditional death penalty system also has become the "prominent learning".Nevertheless,the academic research on the traditional death penalty system is still insufficient.Taking death penalty in Qing Dynasty as an example,the academic achievements mostly focus on the changes of laws,the review of prison waiting,etc.No one has explored the overall characteristics of death penalty in Qing Dynasty.Therefore,the study of the legislative characteristics of the traditional death penalty system not only fills the gap in the academic circles,but also provides a new perspective for observing the contemporary death penalty system.The second part is the research materials and design,that is to introduce the research materials,database construction and research methods of this paper.As a typical representative of Chinese traditional law,"Ta Tsing Leu Lee" basically follow the provisions of the former dynasty.From this point of view,"Ta Tsing Leu Lee",which is known as the "intertwining of ancient and modern",should be the best choice to observe and study the legislative characteristics of the death penalty system in the Qing Dynasty.Considering that there were more than 270 years of Qing Dynasty,there were many versions of the code.After comprehensive comparison,this paper chooses the most representative Qianlong Five-Year Edition of "Ta Tsing Leu Lee" for research,and carries out coding and structured data processing.On the basis of the existing research in academic circles,this paper,starting from the provisions contained in "Ta Tsing Leu Lee",collates and summarizes the subject of crime,criminal acts,harmful results,types of penalties and information of joint crimes in the death-related clauses.The death penalty system in the legislative level of the Qing Dynasty is observed and described from the perspective of empirical law by describing statistical research and combining with specific legal provisions.The third part is data analysis and interpretation,that is,from the distribution of penalties,subject information,harmful results and other aspects of the "Ta Tsing Leu Lee" in the death clause of statistical analysis and interpretation of the law.Firstly,the distribution of penalty is studied in this part.It is found that there are more mixed criminals and fewer real criminals in the Qing Dynasty.After that,the distribution of the death penalty of the actual criminals under various categories was also counted.It was found that the provisions of the death penalty of the actual criminals mostly focused on the three branches of criminal law,namely,burglary,human life and assault.After observing the distribution of Ling Chi and other penalties,it is found that the death-related clauses such as beheading and hanging account for a large proportion,while the death-related clauses of miscellaneous criminals such as beheading,hanging and tardiness account for a small proportion.Secondly,in terms of subject information,this article divides the subject identity in the death clause of Qing Dynasty into nine categories: social general,public office related and clan subject.And the identity composition of clan subject is detailedly divided.The study found that the death penalty system in Qing Dynasty was more tolerant to the elderly,while the punishment to the inferior and young was relatively heavy.Thirdly,in the aspect of joint crime,through summarizing the information about the accomplice in the articles of law,such as "primary","original intention" and "adding merit".Is is found that the system of accomplice in the Qing Dynasty law is relatively mature.The clear definition of the concepts of the first accomplice and the accessory to the crime makes the application of death penalty different under the accomplice mode.The primary offender in the joint crime applicate the death penalty more,but for the accomplice with bad circumstances,the death penalty is applicated equally.Fourthly,in terms of hazard consequences,this chapter divides the hazard consequences contained in the death-related clauses into four categories: personal,property,gathering and other analysis.It is found that death is more common in personal and property crimes,and the severity of penalty is proportional to the degree of harm to crime.Fifthly,additional penalty and relief clauses,some of which involve additional penalty and relief clauses,are included in the analysis in this paper.The additional penalties of death penalty in the Qing Dynasty mainly included confiscation of property,beheading announcement and related relatives.Most of the additional penalties were applicable to the type of death penalty by beheading.The provisions of relief and reduction are mainly distributed in the death penalty of imprisonment,which further limits the scope of application of death penalty.The fourth part is about the provisions of representative charges.Considering that the analysis of descriptive statistics is too dull and without theoretical elaboration as a support,this part screens some representative charges related to death from the two angles of similar legal interests in ancient and modern times and specific charges in ancient times.The discussion of charges with similar legal interests is based on the specific provisions of modern criminal law.After analyzing the legislative features of death penalty for typical charges,it is found that the criminal law of Qing Dynasty and modern criminal law have consistency in protecting social relations such as national security,personal security and property security,while the penalty of Qing Dynasty is more severe.In the discussion of different charges in ancient and modern times,the death penalty clauses of crimes endangering imperial rule and involving feudal ethics are analyzed and discussed respectively according to legal interests.These crimes,which have no trace in the modern criminal law system,embody the legislative spirit of the traditional death penalty.The fifth part is the conclusion.After a systematic analysis of the death-related clauses in Qing Dynasty,this chapter focuses on the impact of the death penalty system on the concept of death penalty,starting from the traditional concept of death penalty.It also emphasizes the reference significance of the death penalty reform in the late Qing Dynasty to the current reform of the death penalty system.Finally,on the basis of summarizing the research in this paper,it points out the shortcomings of the research in this paper and the related problems to be further studied.Generally speaking,although the death penalty system in Qing Dynasty was widely applied,it was not blindly harsh.The system of miscellaneous crimes,death penalty and imprisonment provided legislative guarantee for "turning death into life" in judicature.To treat different subjects differently,it not only implements the traditional Confucianism,but also demonstrates the substantive fairness of criminal law.The concrete performance are as follows:Firstly,the death penalty clause in Qing Dynasty has a wider scope of application.The death penalty clause not only accounts for a large proportion of all crimes,but also exists in every chapter of the code.Secondly,the main types of criminal law are the actual crime of death,and the number of miscellaneous crimes of death is relatively small.The centralized distribution of the death penalty clause in the three branches of the criminal law,namely,fighting,robbery and human life,conforms to the traditional Chinese legislative concept of "king's policy,rush for robbers".Thirdly,the types of punishment such as chopping,hanging,execution and imprisonment of miscellaneous offenders are olive-shaped according to severity.The death penalty clauses in the code are mostly chopping and hanging,while the number of miscellaneous criminals applying death penalty and tardiness ia less.The articles applying death penalty to imprisonment account for an absolute majority,which lays a good legislative foundation for "turning death into life" in judicial activities.Fourthly,official offenders and clan offenders have become the key regulators of death penalty at the legislative level.By analyzing the identity composition of clan offenders,this thesis proves that clan doctrine is the basic spirit and main characteristics of ancient Chinese law.Fifthly,on the premise of the theory of "intention primary",the death penalty in the Qing Dynasty was mostly applicable to the primary offenders such as intention and original intention.Although there are differences in the application of penalties under the mode of joint crime,the subject of accomplice who commits extremely serious crimes is all sentenced to death,regardless of the primary.Sixthly,most of the harmful consequences of death-related clauses in the Qing Dynasty are crimes that infringe upon personal,property and national security.Influenced by traditional customs and concepts,the law of Qing Dynasty also regulated the death penalty for the serious destruction of graves and the opening of coffins to see corpses.As an important yardstick for evaluating the harmfulness of criminal acts,the harmful results contained in law of Qing Dynasty,together with criminal acts,highlight the criminal concept with Confucian characteristics.Seventhly,the penalty of Qing Dynasty has the characteristics of enlarging its application.For criminals who commit extremely bad crimes,certain penalties will be imposed on their relatives after sentencing them to death.Eighthly,there is a system of relief and reduction in some death-related crimes.The provision of relief and reduction restricts the application of death penalty and highlights the idea of "pity is torture " in traditional legal culture.Although China has undergone tremendous changes in the past two centuries,the concept of the death penalty based on the traditional death penalty system is still rooted in the hearts and minds of the people.With the deepening of reform and opening up and the development of economic level,the reform of China's death penalty system has become an inevitable choice for the progress of China's rule of law and the development of social civilization.Therefore,the study of the death penalty system of Qing Dynasty,considering its gains and losses,it is not only the reorientation of traditional death penalty,but also the natural choice to excavate and inherit the essence of Chinese legal culture,absorb the nutrition,select the good and use it?...