Author: Cao Yiqing (Professor, Law School, Tongji University)
As early as October 13, 2014, General Secretary Xi Jinping stressed at the 18th collective study of the Political Bureau of the CPC Central Committee: In ancient times, China advocated that the people should only be the state, the government should be the people, the etiquette and the law should be combined, and the morality should be assisted by punishment... And so on, and so on, and all of this can give people important enlightenment. This speech is an affirmation of the principles and spirit of traditional Chinese law.
The purpose of the legislation is to provide discretion for the judiciary
China's traditional laws are based on the moral code of full consideration and respect for nature and human feelings, so it should be said that legislation or specific laws fully reflect the influence of morality, that is, the legislative requirements of "virtue and punishment" and "etiquette and law" have fully penetrated into the law. However, "virtue is the main criminal auxiliary" is a legislative principle, not a judicial adjudication standard. Strictly adjudicating in accordance with the law and realizing fairness and justice in the judiciary are the purposes and requirements of legislation.
From a judicial point of view, in theory, strict application of the law is the implementation of the legal principle of "virtue and criminal assistance". The starting point of traditional Chinese law on this basis is to try to provide a unified scale for judicial adjudication on the basis of fully understanding the current judicial situation, with the purpose of solving the problem of confusion in the application of the judiciary and solving the problem of fairness and justice at that time, which can be reflected in the most famous legal codes in Chinese history.
Judging from the principles established by the codes of feudal states throughout the ages, rulers attached great importance to law enforcement and justice. Moreover, in each feudal code, the purpose of legislation is to eliminate the confusion of law enforcement and justice, and it is clear that the implementation of the system needs to be adjusted through unified legislation. The principle of "virtue as the main punishment auxiliary" is fully expressed in the representative work of traditional Chinese law, "Tang Law Neglect", "Virtue is the foundation of politics and religion, punishment is used for political and religious purposes, and the emperor is also the one who has to be in the autumn of the dawn and the sun", this classic sentence pattern influenced the feudal legislation of later generations, and was fully expressed in the tang and later legal codes.
On the surface, the Tang Law itself seems to emphasize the moral element. In fact, a careful analysis of the feudal code shows that the law does not express the meaning of contempt for the judiciary, and clearly distinguishes between legislative and judicial requirements. In the opening work of the Tang Laws and Regulations, the "Famous Examples", it is said: "The constitution of the present day, the scale of the former saints, the statutes are lost, and the law is prepared, and the division of the criminal constitution is different: Dali sits dead, and the punishment department is sentenced to exile; a state is sentenced to a year of imprisonment, and a county will be punished with a staff." There is no explanation, touch smear mistakes. First of all, it shows that the standards of judicial adjudication are not the same in various departments and places, and in today's words, the phenomenon of "different judgments in the same case" abounds, indicating that the government is well aware that in actual life, law enforcement has a certain degree of arbitrariness, and the discretion of central and local judicial officials lacks clear standards and restrictions, so it is proposed that "for example, the weight of the knowledge of weighing, if the rules are square." It shows that the legislation of the Tang Dynasty was also based on judicial requirements, and its legislative purpose and purpose were also the primary emphasis on the unity of judicial norms and the unification and straightness of law enforcement.
As dynasties changed, the same problems continued to recur in later generations. In terms of the legal system, although the Song Dynasty inherited the Tang system, Dou Yi still emphasized in the "Song Punishment System" in the "Table of Entry and Punishment": "The state has a regular section, and the officials do not dare to insult." "Officials are required to act in accordance with the law. Although the laws of the Yuan Dynasty are different from those of the Tang and Song Dynasties, Bo Shu Lu Chong wrote in the "Order of the Great Yuan Tong System": "As contained in the Book of Ranjian, the years increase and the number of years increases, and it is scattered in Yousi, which is both complex and complex, and does not know what to unify. Officials who threaten their feelings, use slander to do private things, and the people to intimidate the government. Tai Xian has repeatedly said that the Minister of the Ding Axis is always suffering. It is also pointed out that the legal norms at that time were scattered and not uniform, resulting in officials not acting in accordance with the law, and even high-level officials were worried. Therefore, it is proposed that "the political system and the legal process can be used as an order, and the class set is compromised to show the division." It also indicates the need for uniform laws to be enforced by officials in accordance with the law.
Hongwu's Thirty-five Years of the Imperial Ming Law Order begins with a clear meaning: "The law is in the division, and the people do not know it." Therefore, "all the prohibitions on the list of the year have been abolished." In the future, the Law Division will only follow the law and the Great Curse to control sin." In particular, it mentions that not only officials should master the law, but ordinary people should also know the code of the state, and decreed that in the future, only the laws of Daming and the Ming Dynasty should be convicted and sentenced. In the Great Ming Law, the important role of law in the judiciary is still reiterated.
In the Qing Dynasty, the problem remained the same. Qing Shunzhi's three-year "Preface to the Imperial System of the Great Qing Dynasty" said: "Every time you encounter a song, the weight of the entry and exit is quite annoying. The law is undecided, and there is nothing to be promised. "Judicial officials do not have uniform standards for handling cases, the severity of handling is different, and the enforcement of laws has a certain degree of arbitrariness, so it is necessary to legislate clearly." The "Supplementary Regulations of the Great Qing Law Collection" even more requires: "There are officials inside and outside the country, respect this constitution, do not arbitrarily exalt, make sure that hundreds of officials and millions of people are afraid of the name and repeat the law, and hope for a few punishments." "It is emphasized here that the purpose of making laws is to require all officials to respect the law, act strictly according to the law, and not arbitrarily take matters into their own hands. All officials and ordinary people must abide by the law and ultimately achieve the purpose of punishment.
Legislation to unify adjudication standards is a practical need of the judiciary
The traditional legal concepts of "virtue-based criminal auxiliary", "ritual-law combination", and "heavenly reason and human feelings" have been integrated into specific provisions and norms by feudal legislation, and it is believed that "virtue-lord criminal auxiliary" can try cases without following the law, which is obviously a misunderstanding of the relationship between "moral main criminal auxiliary" and "etiquette-law combination" and legislation and justice.
Wang Huizu, a famous mule of a generation, once said about such a case: "In the past, a friend handled a case of abduction and abduction because of adultery, with the intention of excusing the adulterer, that is, the adulterous woman was on the run and remarried, not because of adultery." Later, the woman married herself as a betrayer, and the sin was rehabilitated, and it was a great deal of trouble. It is to forgive the adulterer's dispatch, and several adulterers are killed, and they know that one does not know the other. Therefore, the divine law-teller is able to avoid the law, not just to introduce the law. If it is only possible to introduce the law, then the hanging law is punishable by comparing the crime of attaching a person, which is enough, and what is the use of the curtain. "It is said that a friend intends to assist the suspect in the case of a man who commits rape and abduction of a woman, so the man's active crime (rape and abduction) is recognized as a criminal act committed by the woman's initiative (the woman flees and remarries), and if so determined, the woman shall be hanged. In fact, it is not easy to ascertain the case from the appearance of the conduct alone. Because the external manifestations and results of the criminal act are both men and women in non-marital relationships eloping and fleeing together, as to whether the man abducted or the woman took the initiative to flee to the man, or the two sides conspired and agreed, this needs to be carefully examined and verified. Therefore, Wang Huizu lamented: If judicial personnel only mechanically correspond to an act according to a certain law, which is a simple task that ordinary Officials without professional training can do, then do they still need to be the closest friends of legal professionals (criminal masters)? So he said, "The Vinaya misunderstands its harm and even extends to living beings." "The judiciary's misunderstanding of legislation and laws is to kill people.
As a long-term practitioner of judicial practice, Wang Shi is well aware of the specific crux of the judicial process, and the case described by him profoundly illustrates the actual situation in the judicial system and the application of laws in feudal society, and even more shows that the judicial process cannot be simply a random set of laws. In fact, the law and the problems in the implementation of the law remained unresolved until the Republic of China era. Although there was a wide range of legislation around the 1930s, the status of implementation of the law varied widely. The Japanese scholar Ren Ida Sheng believes that China's feudal society focuses on the ideal form of the construction law, and the law has no practical effect and has become something divorced from reality. He specifically referred to the various laws of the Republic of China period, "people do not necessarily understand and accept according to the intention of the legislator, but often the recipients of the law distort, violate or even completely disregard the law." The legislation of the Republic of China and the implementation of laws are also disconnected, and this reality is also recognized by Chinese and foreign scholars.
The judiciary should better achieve the purpose of legislation
Looking back at Chinese history, the two most Chinese well-known schools of thought that have had the greatest influence on the ideological and social life of Chinese are Confucianism and The Fa. Scholars who study law then analyze their different legal ideas in their doctrines, and believe that these ideologies have influenced the spiritual world of Chinese from different angles, and have also deeply affected Chinese law, and formed a unique legal culture in China. Many people believe that the spirit of the legalists is more embodied in strict law enforcement, while Confucianism pays more attention to the content of the spiritual and moral level, that is, Confucians attach importance to moral indoctrination, and law enforcement and justice are not the focus of their attention. Both then and now, there is a view that "virtue is the main criminal auxiliary" requires that the judiciary should proceed from morality. In fact, this is to equate legislative principles with the judiciary.
Judging from the concerns of the feudal codes of successive dynasties after the Tang Dynasty, although they all implemented the legislative principle of "virtue and criminal assistance", it is undeniable that the primary task of the judiciary is to achieve adjudication according to law, in fact, the rulers have always been concerned about the judicial situation, and they also expect to regulate the behavior of government officials through laws, and they also need the people to clarify the normative requirements of the law.
In the Qing Dynasty, Xue Yunsheng said at the beginning of the "Tang Ming Law Compilation" that it is not easy for the system to remain unchanged for a long time: "If the great master of the Great Law, the people's life is concerned, that is, the peace of mind and nature, can be carried out for a long time without harm." This also confirms the requirement of the combination of etiquette and law, and the law that conforms to the nature of the human heart can be carried out for a long time, that is, the legislation should reflect the heavenly reason and the human heart. If we think that "virtue is the main criminal auxiliary" is to require the application of morality in judicial activities and exclude the application of law, this is a misunderstanding of the principles of feudal legislation and confuses the legislative principles with the standards of judicial discretion. The law requires judicial officials to follow and implement the provisions of the law, so as to truly implement the legislative requirements of "virtue and criminal assistance" in the trial.
Therefore, from the perspective of strict compliance with the law, the discretion in the judiciary should be limited. One of the practical purposes of legislation is to establish standards for judicial adjudication and to restrain the arbitrariness of judicial officials. In this regard, the laws of all generations have been consistently required, and they have not changed through the changes of dynasties.
For example, for the case citation, although feudal society is also OK, Wang Huizu said: "A case is like becoming ink, but it only exists in its genre." It will be given to the king, and there are few people who carve a boat and ask for a sword. "Cases cannot be blindly used as the yardstick for the trial of cases. He said: "People are constantly changing, and there is always nothing wrong with it. "Social life is very complex, and it is very rare to have exactly the same cases." Since the circumstances are clear, there is always a case of appropriate guilt. Why take the case and follow the gourd? It is inevitable that the case will be followed, and it will inevitably be done. Increase or decrease by millimeter, and mistakes in a thousand miles are light. He believes that when the facts of the case are clear, the law or regulations should be strictly applied, so why should we follow the case? If the magistrates all decide according to the written case, the consequences can be serious. Therefore, between the law and the conclusion of the case, the judge should have a clear understanding, that is, the case also has strict conditions for application. If the facts of the case are clear and the law can appropriately convict, there is no need to invoke the case as a criterion for adjudication.
The judiciary should strictly follow the provisions and requirements of the law, which is also clearly defined in the feudal code, and the legislative principles and the standards of judicial discretion should not be confused. Only by being clear from the source can we better understand the essence of traditional laws, better carry forward the positive influence of traditional Chinese legal culture on modern justice, and better realize fairness and justice in the judicial process.
In the Opinions on Improving the Working Mechanism for Uniform Standards for the Application of Law, the Supreme People's Court mentioned that "firmly grasp the principles that should be adhered to in the unified standards for the application of law", requiring "adhering to the combination of governing the country according to law and governing the country with ethics, taking into account the natural and human feelings of the state law, and giving play to the leading role of adjudication norms", and also clearly "adhering to the principle of taking facts as the basis, taking the law as the criterion, abiding by legal procedures, following the rules of evidence, correctly applying the law, strictly regulating the exercise of discretion, and ensuring the uniform and correct implementation of the law." Earnestly safeguard the unified dignity and authority of the national legal system." From this point of view, the historical experience is worth learning from for the scale and standard of achieving judicial fairness and justice.
Source: Procuratorial Daily