History of the Chinese Legal System – Western Zhou Dynasty

Legislative thinking

Match the sky with virtue: respect the sky and protect the people (reflecting the people-oriented thought)

Mingde prudential punishment: the implementation of moral education, the use of punishment leniency (that is, to govern the country with "moral education" and turn it into the world; When formulating laws and imposing punishments, we should be lenient and cautious, rather than blindly using severe punishments to force our subjects to obey. However, this is not to weaken the deterrence of punishment, but to apply punishment more effectively and accurately, and to prevent the exacerbation of conflicts due to abusive punishment.)

Legal form

Punishment:

Nine Punishments (Nine Punishments of the Zhou Dynasty)

Courtesy:

Within the family, the father is the center: the father is the head

Within the scope of society, the monarch is the center: the monarch is the head

Jili: Sacrifice

Funeral: Funeral

Military salute: marching to battle

Greetings: Welcome

Karei: Ceremonial Ceremony

: They are mutually reinforcing, complementing each other, and together constitute a complete system of the Western Zhou Dynasty legal system.

Etiquette is a positive norm that people are required to consciously abide by, focusing on prevention and emphasizing moral education. Punishment is a sanction for criminal acts, focusing on punishment after the fact, focusing on punishment and sanctions. If moral education fails, a penalty will be applied for serious violations of propriety, i.e., "rudeness will be punished."

"Etiquette is not inferior to the Shuren", the main etiquette is not set up for the Shuren, but this does not mean that the Shuren can not be bound by the courtesy, and any behavior that exceeds the etiquette must be punished, especially for the Shuren. "The punishment is not a doctor", the purpose of the punishment is not mainly aimed at the nobles, and the nobles can enjoy the privilege of reducing the punishment in the application of the punishment. If a nobleman commits a serious crime, corporal punishment is generally not applicable, and he can also be exiled or even given death, but the execution is not carried out in the city court, so as to reflect the dignity of the noble.

Penal system

(1) Crimes

1. Destruction is a thief (destroying the etiquette), a thief is hiding (harboring a thief), stealing bribes is stealing (stealing property), and stealing is a surname (stealing national treasures)

2. Robbery and theft

3. Five faults (dereliction of duty by judicial officials)

(1) However: uphold the will of the upper hand and rely on power

(2) Opposite: using power to report personal grievances

(3) Inside: Inside, secretly contained

(4) Goods: bribery, extortion

(5) Only: accept the request and bend the law for personal gain

The "Lu Penalty" stipulates that those who commit the five faults are "guilty of the same crime", that is, the judge and the criminal are punished equally

4. Internal mole, external mole

5. Murder (killing and robbing property)

6. Unfilial piety (not respecting parents and elders), not being friends (not being close to each other)

7. Disobey the king

(2) Types of punishments

Nine punishments: ink, slash, slash, palace, and Dapi

Flow, ransom, whip, flutter (mostly used for nobles and officials)

(3) Conviction and sentencing

"The middle is the word, not light or heavy." It is emphasized that the sentencing should be appropriate to the crime, and should not be unduly light or severe

"Punish the new country, use light codes; Punish the country and use heavy codes; Xingping country, with the Chinese code. (At the beginning of the regime, the punishment should be lenient in order to stabilize people's hearts; When the country is in turmoil and social chaos, heavy punishment should be used to deter crime and restore order; When the regime is stable, the punishment should be based on the "middle code" that is neither light nor severe, so as to maintain order. )

"There is a right to punish severely, and the punishment is light and heavy." (It is advocated that the punishment should be measured in light of the subjective and objective circumstances of the crime, and that it should not be blindly lighter or heavier.) )

If the punishment is not as good as the doctor, the punishment for the same crime is different (reflecting the patriarchal hierarchy)

"Whoever kills is to go to the cities for three days. Torture and theft in the city. The same is true of those who are in the law in the beauty of sin. Only the king's clan and those who have lords will be killed in the Dianshi clan. (If a person commits a crime of murder or theft, he must be punished in the downtown area and displayed in public for three days; The royal family and nobles with titles who committed capital crimes were secretly executed by the Dianshi clan, and generally not executed in public)

"There is no palace punishment for the princess." (Those who should be sentenced to palace punishment shall be commuted by the nobles)

The "Eight Liberty Bond Law" openly grants the privilege of reducing the sentence to a person with a specific status.

The young, the elderly, and the stupid are generally pardoned for their crimes, except for intentional homicide.

"A man who commits a petty sin, not intentionally, but only ends up (habitual offender)..... If there is a small crime, it must not be killed. It is a great sin, not an end, but a calamity of negligence.... The hour shall not be killed. ”

That is, if a person commits a minor crime, but intentionally and consistently violates the law, and insists on not changing it, such a person cannot be killed even if he commits a crime; A person who commits a great sin, but sins, by chance, out of negligence, and knows repentance, should not be killed

"If there is no proper law for a crime, the punishment will be higher than the crime", the specific provision is "the upper punishment is lighter, and the lower punishment is served; The punishment is appropriate and severe, and the punishment is severe", that is, it is applied by analogy in the absence of express provisions of the law

"Upper punishment" refers to the punishment of a serious crime that should have been severed, and "moderate lightness" refers to having a mitigating reason, and "serving", that is, serving a sentence for a relatively minor crime, commutation, etc.; vice versa

The proposition of the principle of comparing the guilt between the upper and lower levels has expanded the scope of criminal punishment and enabled the adjudicators to have greater arbitrariness in convicting and sentencing. In the early stage of the development of criminal law, due to the serious shortage of legal provisions that were the legal basis for trial activities, the implementation of the principle of comparing the crime between the upper and lower levels made up for the shortcomings of the law to a large extent, and could effectively adjust social relations, maintain social order, and safeguard the interests of the ruling class as a whole

"The suspicion of the five punishments is pardoned, and the suspicion of the five punishments is pardoned, and it is overcome." (Where there is doubt about the application of the five punishments, it may be reduced to five punishments (i.e., atonement), and if there is still suspicion, a pardon will be given, reflecting the "prudent punishment of virtue")

"In the midst of the prison lawsuit of the common people with three stabs: one day for the ministers, two days for the officials, and three days for the people. Listen to the people's assassination, and inflict the punishment of the upper and lower servants. ”

That is, three interrogations to make the judgment of the civilian lawsuit correct. The first is to interrogate the ministers, the second is to interrogate the officials, and the third is to interrogate the people. Listen to their opinions to decide whether to kill or lenien, and decide whether to apply a heavy sentence or a light sentence)

Civil law system

(1) Identity

Partition system: In the early years of the Western Zhou Dynasty, in order to ensure the stability of the Zhou family, the partition system of "feudal statehood" was implemented. Zhou Tianzi implemented the practice of "granting the people and granting territory" to the land outside Wangji, that is, the land and the people were given to the princes at all levels, and the princes at all levels were divided into feudal systems to give part of the land in their own feudal country to the Qing doctor, and the Qing doctor then gave part of the land in his own mining to his subordinates ("scholars"), so that the layers of feuds were divided, forming a strict hierarchical structure between Zhou Tianzi, the princes, the Qing doctors, and the scholars.

Patriarchal hierarchy:

1. Zongao implements the primogeniture inheritance system

2. The rights and obligations of large and small parcels have a clear relationship and complement each other

3. The family and the country are one, the relatives and nobles are one, and the hierarchical order is clear.

(2) Creditor's rights

Contractor (full-time official to manage deed matters), pledgee (marketing manager)

Sales contract: quality (large) agent (small), all made by the official, as a certificate to deal with sales disputes.

Loan contract: Fu Bei, the creditor holds the left coupon, the debtor holds the right coupon, and the judge uses it as evidence to hear the relevant creditor's rights and debts dispute cases.

(3) Marriage and family

"The wedding person, the two surnames are good, the upper is the temple, and the lower is the successor." The purpose of marriage is two, and not, or primarily not, the union of the individual of the man and the woman, is for

1. Monogamy and polygonal concubinage

2. "The order of the parents, the words of the matchmaker" (under the patriarchal system, the marriage of children must be presided over by the parents and matched by the matchmaker, otherwise, the marriage is not in accordance with the etiquette law)

3. "The same surname is not married" (1) "Men and women have the same surname, and they are not born." "It is not conducive to the health of offspring and the reproduction of the clan. (2) "It is taken from the opposite sex, so it is attached far and thick." "Strengthen political ties with other clans.

4. Perform the "Six Rites" procedure: Nacai, Ask for a name, Najib, Nazheng (Na Yuan), Invitation, and Welcome

Seven out: (unilateral dissolution of the marriage contract by the husband or in-laws)

(1) Childless

(2) Lewdness

(3) Disobedient in-laws (not uncles)

(4) Tongue-in-cheek

(5) Theft

(6) Jealousy

(7) Serious diseases

The setting of its content and the exercise of rights are centered on the protection of the interests of the man's family, aiming to ensure the stability and continuation of the family, and also reflecting the obvious concept of male superiority and inferiority of women

Three don't go:

(1) Married and homeless (homeless)

(2) Three years of mourning with more (filial piety for in-laws)

(3) The former poor and the latter rich

There are certain restrictions on the man's unilateral divorce, but the essence is not to protect the rights and interests of women, and the starting point is still to maintain etiquette and advocate patriarchal ethics and morality.

(4) Inheritance

Inheritance of status, inheritance of property→ primogeniture

"Establish a descendant to be long and not virtuous, and to establish a son to be noble but not to be long"

Judicial system

Judiciary

Da Si Kou: "In charge of the three canons of the state, in order to help the king punish the state, and to punish the Quartet", that is, to assist the king of Zhou to take charge of the national judicial work.

Xiao Si Kou: "Listen to the prison lawsuits of all the people with five punishments", which means: to assist the big Si Kou in hearing cases and handling prison lawsuits.

In addition, there are various full-time subordinate officials, such as punishment, assassination, prisoner, and killing, to deal with various judicial affairs.

Litigation system

"Prison": A person who has been charged with a crime

"Lawsuit": a person who sues with money

"Breaking from prison": hearing criminal cases

"Hearing": hearing a civil case

"Jun Jin": Criminal Litigation Fee (30 catties of copper)

"Arrows": Civil litigation costs (100 arrows)

Judicial system

In the long-term judicial practice, Xi Zhou summed up a set of experience in "listening to prison lawsuits and seeking people's feelings with five voices", that is, using words and colors to conduct trials to judge the truth and falsity of the parties' statements, and "five voices" is also "five listening"

(1) Resignation and listening: "Observe their speech, if they are not straight, they will be annoying", observe the verbal expression of the parties, and the aggrieved ones will be confused

(2) Listen to color: "Look at its color, if it is not straight, it will be confused", observe the facial expressions of the parties, and the aggrieved ones will blush

(3) Breath listening: "Observe its breath, if it is not straight, it will gasp", observe the person's breathing, and wheezing if it is unreasonable

(4) Ear listening: "Observe and listen, if it is not straight, it will be confused", observe the hearing of the parties, and if it is wrong, it will not be clear

(5) Listening: "Look at his eyes, if he doesn't see straight, he will be stunned", observe the eyes and vision of the parties, and lose his eyes if he is unreasonable

Although it is close to subjectivity, it is obviously a big step forward compared to Xia Shang's "divine judgment", and in a sense it can be said to be the germ of trial psychology.