Laws and decrees were the main legal forms in ancient China for a long time, so they were called ancient Chinese laws by legal laws or legal systems. The Qin and Han Dynasties were an important stage in the origin and development of the legal system.
The legislative activities of the Qin and Han dynasties, according to the "Book of Jin and Criminal Law", constituted the following genealogy of development: during the reign of Wei Wenhou, Li Wu wrote six "Laws of Law" in the laws of various countries, namely "Thieves", "Thieves", "Nets", "Catches", "Miscellaneous", and "Tools"; when Qin Xiaogong was filial, he used the "Law Classics" to govern the Qin State; in the early Western Han Dynasty, on the basis of inheriting the Qin Laws, he added the "Xing", "Stable", and "Hu" three articles to determine the "Nine Chapters of Law". Under this main line of development, the Han law developed again: Shusun Tong added the "Eighteen Chapters of the Gong Chapter" that the Han Law Could not reach, the Twenty-seven "Yue Gong Laws" made by Zhang Tang during emperor Wu's time, and the six "Dynastic Laws" made by Zhao Yuding; after Emperor Wu, the laws continued to expand, and "the literature was surplus in several cabinets, and the canonists could not see them all" (Hanshu Penal Chronicle). Among them, the "Nine Chapters Law" is the foundation of the two Han laws. For these records in the classics, for a long time, the academic circles have believed in them. However, when we refer to the Qin and Han laws seen in the excavation of Jian Mu, we cannot find the difference between the "six chapters" and "nine chapters" and the "non-six chapters" or "non-nine chapters"; comparing the literature and historical materials on the "Fa Jing" and "nine chapters" in different classics, it is not difficult to find the traces of the "layered" construction of the classical legal system and clearly find them; the titles of "Zheng law" and "Gong Zhang" should be the value judgment of posterity rather than the factual expression Xu Shihong: "A Review of the Study of the Two-Year Law and the Qin and Han Legal System in Recent Years." In: Research on Ancient Chinese Legal Texts (3rd Series), China University of Political Science and Law Press, 2007 edition, pp. 232-235. Although we cannot blindly deny that there is a problem with the qin and Han law evolution system recorded in the classics, at least we should not believe it as before; how to explain the difference between the classic records and the Jian Mu records has become a key issue in the current study of the Qin and Han laws and laws.
As far as we can see so far, there was no "code of law" in the Qin and Han Dynasties, and the legal system consisted of several legal forms, each of which did not have a strict sense of the distinction between crime and non-crime, punishment and non-punishment. In the Qin and Han Dynasties, the legal forms included laws, orders, branches, products, ratios, and so on.
Law is the most basic form of law. The combing of the title of the Qin and Han laws has always been a controversial issue. The common records of "so-and-so law" in the literature (such as "barbarian law", "law of removing disciples", etc.) cannot be viewed in general terms as the title of the law, and may be the abbreviation of a certain law. Taking the "Bamboo Jane of the Tomb of the Sleeping Tiger Of Qin" and the "Bamboo Jane of the Han Tomb of Zhangjiashan" as examples, there are about 20 kinds of titles seen in the Qin Laws, and there are nearly 30 kinds of laws in the Han "Two-Year Law Order", and the laws have long exceeded the scope of the six or "nine chapters of the Law" of the "Law Classic".
During the Qin and Han dynasties, "'law' can be both a carrier of criminal law and an expression of civil, administrative, and economic regulations." Xu Shihong, "Non-penal Legal Mechanisms in Han Dynasty Society" (Revised Draft), Proceedings of the Academic Seminar on 'Jingyi Prisons and Traditional Law'" (Institute of History and Languages, Academia Sinica), Taipei, December 2004, p. 10. As far as the laws of the "Two-Year Law" are concerned, they can be roughly divided into three categories: First, they basically belong to the provisions of the Criminal Law, and the more prominent ones are "law of theft," "law of thieves," "law of catching," and "law of possession."; second, there are those that are between the provisions of the criminal law and non-criminal law provisions, such as "household law," "law of writing," and "law of validity," and so on; third, they are basically unrelated to the criminal law, such as "law of giving," "law of fu," and "law of rank." This is almost unknown to us before. The decree is an important legal carrier second only to the law, and the supremacy of imperial power gives it an independent legal character, making it a direct source of law. There are three ways to issue orders: First, the emperor directly exercises the legislative power and uses the words "writing orders" and "writing orders" in the edicts; second, the emperor entrusts the ministers to exercise legislative powers, and the words "specific orders", "discussions for orders", and "deliberation orders" are used in the edicts, and the legislative content can be formed after being formulated; third, officials play requests within the scope of their authority, and after the emperor makes a decree, they are issued in the form of edicts. > >
After the Wei and Jin dynasties, "the law was to be justified, and the order was to use the system of existence", but the relationship between the law and the order in the Qin and Han dynasties was more complicated. The first is the transformation of laws. This is more evident in the early history of the Law. The law appeared relatively late as a legal carrier, and from about the end of the fourth century BC to the middle of the third century BC, the "Law for The Field" in the Qingchuan Mumu and the "Wei Hu Law" in the Sleeping Tiger Di Qin Jian were only the original forms of the "Law", "Although the name is 'Law', it is quite similar in form to the edicts and unilateral decrees issued by the monarchs since the Yin Zhou Dynasty." "Zhu Zongbin: "On the Problem of "Changing the Law into Law" in Ancient China", Zai's book: "Collected Works of Materials and Materials- Zhu Zongbin's Academic Research Papers", Sanqin Publishing House, 2006 edition, p. 333. Many of the laws of the Qin and early Han Dynasties have traces of orders, and some of them can be determined to be transformed from orders. The second is the law-abiding order. As a supplement to the law, the object and scope of adjustment are expanded. The will of the ruler can be realized at any time through indefinite orders, and in relation to the stability of the law, the Han Dynasty supplemented the law in large part in the context of the order. In the process of sentencing and sentencing, most of them act in accordance with the law rather than the order, and it is also the manifestation of the law's main order. The third is to divide the way of the law. On the one hand, the so-called law-decree division is the consent of the law to be linked to the punishment and becomes a "punishment", and some non-penal laws gradually appear in the form of orders; on the other hand, the legal provisions that are specifically or mainly as a matter of the law appear, so that the original penal content is basically eliminated. During the Qin and Han dynasties, many non-penal legal texts appeared in the form of orders in later generations, which is a typical example of the development of laws and orders in different ways. The emergence of this phenomenon has a lot to do with the Qin and Han laws and the content of the order. > >
After talking about the law and the order, let's look at the section, the product, and the ratio. Whether or not there were disciplines in the Han Dynasty was controversial in academic circles. There is a book in juyan xinjian of "purchasing and rewarding disciplines", which is generally considered to be a specific form of expression of the department. Based on the basic spirit of the law, with the change of time and circumstances, the section appears in a specific and detailed interpretation of the regulations, adapting to different situations and solving new problems. The record of "the old order system, each with its own merits" ("Later Han Shu Andi Ji" clearly shows the relationship between the branch and the law. This legal form of product seems to have similarities with the branch. The Book of Han and the Chronicle of the Emperor of Sorrow has "famous land animal slave goods", which stipulates the number of fields and slaves that people of different levels should occupy; Han Jian saw that there is a "beacon product covenant", which is the detailed rules of the border Tunshu organization on the burning of beacon signals. Judging only from the specific content of the "purchase and reward section" and various products, they seem to have little to do with conviction and sentencing, and more in the nature of administrative norms. Judging from the cases of the "Beacon Product Covenant", once the provisions of the Product Covenant are violated and the Beacon Fire is not lit on time or correctly, the relevant punishment provisions are in the Han "Xing Law". Bi is a common legal term in the Han Dynasty and is one of the forms with legal source effect. The ratio in the legal sense refers to the fact that both laws and precedents are written into cases. When the law is invoked to decide a case without a proper article, it is a kind of implementation, and the case decided thus has the effect of legal basis. The decision ratio is the basis for judgment compiled by class. It can explain the value of laws, supplement the provisions of laws, and improve the implementation of statutory laws. Because bi does not rely on the statute law, lacks a restraining mechanism in its application, and cannot effectively prevent the dominant role of the will, the Han people have "what they want to live, fu sheng discusses, and if you want to fall, you will die" (Book of Han · Criminal Law Chronicle"). > >
The above forms of law constitute the framework of the legal system, and the specific provisions become the flesh and blood of the legal system. Looking at the content of the legal provisions of the Qin and Han dynasties, it is difficult to say that the law was only to protect the interests of the ruling class, and many of the contents were to stipulate and protect the rights and interests of the general public. In addition to the penal system to be mentioned and the judicial and procedural aspects, the content contained in the provisions of the Qin and Han laws is quite extensive: (1) The complicated criminal system. In terms of crimes, there are endangering national security, infringing on imperial power, infringing on personal rights and interests, crimes committed by officials, crimes committed by public servants, and military crimes. (2) Criminal regulations. The content involves rebellion, rebellion, thieves, killing and injuring, beatings, omissions, and buying. (3) Administrative department regulations. It involves the establishment of officials, the level of Feng Lu, the selection and examination of courses, the rights and interests of duties, and the operation of postal transmission. (4) Marriage and family. In terms of marriage, it involves the high status of husband and wife and the abandonment of the property rights and interests of the wife; in the family aspect, it not only maintains the relationship of dignity and inferiority in the family and severely punishes the crime of filial piety, but also stipulates the inheritance of titles, the inheritance of the head of the household, and the inheritance of property. (5) Laws and regulations on economic production. The content involves the collection of taxes and servitude, currency legislation, market economic order, agricultural production and other aspects. Among the "monthly decrees" that are closely related to agricultural production, there are many stipulations that emphasize the "harmonious development" of man and nature, and the color of "environmental protection" is quite strong. In addition, there are many debts, claims and other aspects. > >
The penal system of the Qin and Han dynasties had major changes in its continuation. The types of penalties are death penalties, corporal punishment, hard labor, property, and relocation. The death penalty is a punishment that deprives people of their lives, and has the names of waist beheading and abandonment of the city. Corporal punishment includes tattooing (carving the skin such as a denomination, and then coating it with ink), cutting off the nose, cutting off the left and right toes (cutting off the left and right feet), and palace (cutting off the posture of men, claustrophobic for women). Corporal punishment, as an outward sign of punishment for crimes, is generally used in conjunction with the sentence of hard labor (also known as imprisonment). The types of labor sentences include Chengdan (male is Chengdan, female is 舂), ghost salary white cantonese (male is ghost salary, female is white cantonese), Sikou, subordinate concubines and so on. According to the available data, before Emperor Wen's penal reform, prisoners had no sentence; due to the irregular issuance of the emperor's pardon, the sentence of hard labor should actually be an "indefinite punishment." The sentence of hard labor is generally divided into grades according to the content of labor, but the name of the sentence may not be consistent with the content of the labor. For example, the so-called chengdan scoop is usually a man building a city and a woman scooping rice, but men and women often engage in labor beyond the scope of building a city and scooping rice.
Under corporal punishment plus hard labor, there is a complete sentence and a resistant sentence. The first class of the sentence is completed for the completion of the city. The third grade of resistance to punishment, that is, the patience is the ghost salary white cantonese, the patience is the concubine of the subordinates, and the patience is the sikou. The end refers to the non-corporal punishment and keeping the body intact; the meaning of patience is to remove the beard, which is also a general term for a type of crime. During the reign of Emperor Wen, the reform of punishment, the abolition of corporal punishment, and the determination of the length of punishment were of epoch-making significance in the history of punishment in ancient China. After the reform of the punishment of Emperor Wen and Emperor Jing, the sequence of sentences and sentences of hard labor were gradually determined: Chengdanxun (5), Guancheng Danshou (4), Ghost Salary Baicang (3), Sikou (2), and Punishment (the sentence varies from one year, half a year, and three months). Among the property penalties, the main ones are fines (Qin called "credit"), ransom, etc. Fines generally apply to misdemeanors and are graded according to the severity of the offence. There is a functional difference between legal punishment and substitute punishment. The redemption levels listed in the "Two-Year Law" are six: redemption, gold two pounds eight two; redemption city danshou, ghost salary white japonica, gold one pound eight two; redemption, corruption, gold one pound four two; redemption, dication, tuo, gold one pound; redemption, iron, gold one pound; redemption, gold twelve two; redemption, gold eight two. Bamboo Jane of the Han Tomb of Zhangjiashan, p. 150. Commutation is the punishment of exile, and the punishment of forcibly moving prisoners to a designated area is imposed. In the Han Dynasty, the common method of moving sentences was Shubian, and the number of years stipulated in the Two-Year Law Order ranged from one year, two years, and four years. > >
During the Qin and Han dynasties, the highest judicial organ in the country was the Tingwei Temple, and its chief was called Tingwei. Under the court lieutenants, there are court lieutenants, left and right supervisors, and left and right equal officials. Ting Wei was in charge of the national judiciary, was responsible for hearing major cases, accepted and tried difficult cases reported by localities, and some of the "Zhao Prisons" (cases ordered by the emperor to be tried) involving high-ranking officials of the imperial court and relatives of the clan were also responsible for Ting Wei. The county sheriff and the county governor also have judicial functions to handle local criminal prison cases; and the townships below the county level also have a certain judicial power, which is responsible for arresting thieves, mediating disputes, and settling the rules. The Han Law clearly stipulates the judicial authority of the county road chief, and under normal circumstances, the county road official shou cheng is not allowed to break the prison or go to jail, and if the official of the bureau improperly tries a case outside the authority, he is not jointly and severally responsible for the director. In the seventh year of Han Gaozu (200 BC), the "Edict of Doubtful Prison" was promulgated, stipulating that the procedure for reporting suspicious cases was: county governor - county sheriff - Ting wei - emperor. That is, when the local government encounters difficult cases, it needs to be reported to the level one by one, and the court lieutenants cannot handle it and report it to the emperor, who will make the final ruling. This is both a hierarchy of authority in administration and a link distribution of judicial authority. Judicial officials who do not try the case fairly and fairly in accordance with the law will face charges of indulgence, dishonesty, and negligence.
In the Qin and Han dynasties, the term "litigation" at that time was called impeachment: suing was a lawsuit filed directly by the parties to the judicial organs, and impeachment was a direct correction of the offender by the government or bureaucracy. In the process of accepting and interrogating, the government should base itself on impeachment and must not arbitrarily seek other crimes. Arrest and interrogation immediately after the impeachment has taken place. The "Confession" in Qin Jian's "Sealing Diagnosis Style" clearly reflects the procedure of accusation-execution-interrogation, and the same is true of the Han law. When the interrogation (interrogation) begins, the official has the obligation to inform the parties of the "law of non-verbal evidence", to tell the parties to seek truth from facts, and to strictly prohibit perjury. On the basis of the trial, the judgment is generally made in accordance with the law, and the result of the trial is also reported to the higher authority. If the parties believe that the judgment is improper, they may request the above-mentioned retrial, which was called "begging" at that time. After the judgment takes effect, it must be enforced in accordance with the regulations.