The legislative activities in the Qin and Han Dynasties, according to the records of criminal law in the Book of Jin, constitute the following development pedigree: at present, six laws have been written, namely, stealing, stealing, catching, miscellaneous and preparing; In Qin Xiaogong, Shang Yang governed the State of Qin with Fa Jing. At the beginning of the Western Han Dynasty, Xiao He inherited the Qin law, which was based on three chapters: prosperity, stability and households. Under this main line of development, the Han Law has developed: Shu supplemented the Han Law into eighteen chapters, during the reign of Emperor Wu of the Han Dynasty, Zhang Tang formulated twenty-seven articles of the Law of Crossing the Palace, and Zhao formulated six articles of the Law of Court; After Liang Wudi, the laws and regulations kept expanding, and the documents were mostly a few pavilions, and the canon was incomplete. Among them, nine laws and regulations are the basis of laws and regulations in Han Dynasty. For a long time, academic circles have been skeptical about these records in ancient books. But when we look up the Qin and Han laws found in unearthed bamboo slips, we can't find the difference between 69 chapters and non-69 chapters; Comparing the historical documents about Fa Jing and Jiu Zhang in different ancient books, it is not difficult to find the clear traces of classical legal system accumulated in them. The appellation of "Lu Zheng" and "Bian Zhang" should be the value judgment of later generations, not the factual statement. Xu: A review of the research on laws and regulations and the legal system in Qin and Han Dynasties in recent two years, in China University of Political Science and Law, China University of Political Science and Law Press, 232-235. . Although we can't blindly deny that there is a problem with the evolution system of Qin and Han laws recorded in ancient books, at least we should not believe it as before; How to explain the differences between ancient books and bamboo slips has become a key issue in the study of Qin and Han laws and regulations.
As far as we can see, there was no code in Qin and Han dynasties, and the legal system consisted of several legal forms, each of which had no strict distinction between crime and non-crime, punishment and non-punishment. The legal forms in Qin and Han Dynasties are law, order, science, taste and comparison.
Law is the most basic legal form. It has always been a controversial issue to sort out the contents of laws and regulations in Qin and Han Dynasties. The record of a law that is common in literature can not be used as the title of a law, but may be the abbreviation of a law. Take the bamboo slips of Qin tomb in Shuihudi and Han tomb in Zhangjiashan as examples. There are about 20 titles in the Qin Law, and nearly 30 titles in the second year of Emperor Gaozu, which has already exceeded the scope of the 69-chapter law.
During the Qin and Han Dynasties, law can be the carrier of criminal law, and it can also be the manifestation of civil, administrative and economic regulations.
Xu: Non-penalty legal mechanism in Han society, paper of academic seminar on "Breaking the prison with righteousness and traditional law", Taipei, 65438+February 2004, p. 10. As far as the two-year law is concerned, it can be roughly divided into three categories: first, it basically belongs to criminal law, and the more prominent ones are theft, theft, arrest and possession; Second, it is between criminal law and non-criminal law, such as hukou law, calligraphy and effective law; Third, it has nothing to do with criminal law, such as giving method, assigning method and rank method. This is almost unknown to us before. Order is an important legal carrier after law, and the supremacy of imperial power gives it an independent legal character, which directly becomes the source of law. There are three ways to issue decrees: first, the emperor directly exercises legislative power and uses the words "imperial edict" and "imperial edict" in imperial edicts; Second, the emperor entrusts ministers to exercise legislative power, and the imperial edicts use words such as decree, deliberation order and deliberation order, and the legislative content can be made into decree; Third, the official made invitations within the scope of their functions and powers, and the emperor made them and issued them in the form of imperial edict.
After Wei and Jin Dynasties, the law was based on positive control, and the order was based on the obedience system, but the relationship between law and order in Qin and Han Dynasties was more complicated. The first is the change of laws and regulations. This is obvious in the early legal history. Law, as the carrier of law, appeared later. From the end of the fourth century to the middle of the third century, the natural law in Qingchuan bamboo slips and the Wei law in Sleeping Tiger bamboo slips were the original forms of law. Although the name is law, it is very similar in form to the imperial edicts and separate decrees issued by the monarch since the Yin and Zhou Dynasties.
Zhu Zongbin. On the Problem of Changing the Law into the Law in Ancient China. Stone book: Collected Works of Cai Bucai Zhai. Zhu Zongbin's academic research paper, Sanqin Publishing House, 2006, p. 333. There are traces of decrees in many laws in Qin and early Han dynasties, and some laws can be determined to be transformed from decrees. The second is that law is the mainstay, supplemented by order. As a supplement to law, order has expanded the object and scope of adjustment. The will of the ruler can be realized at any time through irregular orders. Compared with the stability of law, the Han dynasty supplemented the law in a large number of orders. In the process of determining punishment and measuring crimes, most of them act according to laws rather than orders, which is also the performance of the main order of law. The third is the separation of laws and regulations. On the one hand, the so-called laws are linked to punishment, which becomes the consent language of punishment, and some non-penalty laws gradually appear in the form of orders; On the one hand, special or mainly procedural legal provisions appear, basically eliminating the punitive content in the Central Plains. During the Qin and Han Dynasties, many non-penalty laws appeared in the later generations in the form of decrees, which were typical of the development of decrees in different ways. The appearance of this phenomenon has a lot to do with the contents of laws and regulations in Qin and Han Dynasties.
Briefly talk about the law, and then look at the theme, quality and comparison. There is a lot of controversy in academic circles about whether there is a branch in Han Dynasty. Books with the theme of buying and enjoying in Juyan's new bamboo slips are generally considered as the specific form of the theme. The subject is based on the basic spirit of laws and regulations, with the changes of the times and situation, to adapt to different situations and solve new problems with specific and detailed explanations.
The old order system has its own records of subjects and products, which clearly shows the relationship between subjects and law. This legal commodity form seems to have similarities with the family. There were famous farm animals and handmaiden articles in the mourning period of the Han Dynasty, which stipulated the number of fields and handmaiden that people of different grades should occupy. There is a bonfire contract in Han bamboo slips, and there are provisions on the signal of burning bonfires in the organizational rules of border guards. As far as the specific content of categories and products is concerned, it seems that it has little to do with conviction and sentencing, and more appears in the nature of administrative norms. Judging from the case of the bonfire contract, once the contract is violated, the relevant punishment is stipulated in the laws of Hanxing. Comparison is a common legal term in Han dynasty, and it is one of the forms with legal source effect. In the legal sense, comparison refers to established laws and precedents. When other laws are invoked to decide a case because there is no proper law, comparison is another kind of enforcement, so the decided case has legal basis effect. Judgment ratio is the basis of judgment compiled by category. Comparison can explain the value of laws and regulations, supplement the provisions of laws and regulations, and improve the implementation of written laws. Because Bi is not attached to the written law, there is no restriction mechanism in its application, which can not effectively prevent the leading role of will. Therefore, the Han people strongly criticize if they want to live, and strongly criticize if they want to degenerate.
The above legal forms constitute the framework of the legal system, and the specific provisions become the flesh and blood of the legal system. Looking at the contents of legal provisions in Qin and Han dynasties, it is hard to say that laws only protect the interests of the ruling class, and many of them stipulate and protect the rights and interests of ordinary people. In the Qin and Han Dynasties, the legal provisions included a wide range of contents besides the penalty system, judicature and litigation: a complex system of charges. The charges include crimes against national security, crimes against imperial power, crimes against personal rights and interests, official crimes, moral crimes and military crimes. Criminal laws and regulations. The content involves rebellion, rebellion, theft, murder, beating, ignoring people and buying people. Administrative regulations. It involves the establishment of officials, the level of salary, the selection of courses, the rights and interests of posts, and the operation of postal delivery. Marriage and family. In marriage, it involves the abandonment of husband and wife's status and wife's property rights; On the family side, it not only maintains the relationship of honor and inferiority in the family, severely punishes the crime of unfilial, but also stipulates the inheritance of titles, heads of households and property. Economic production laws and regulations. The content involves tax corvee collection, monetary legislation, market economic order, agricultural production and so on. There are many articles in Yue Ling that are closely related to agricultural production, emphasizing the harmonious development between man and nature, and the environmental protection color is quite strong. In addition, there are many aspects such as debt and creditor's rights.
Great changes have taken place in the criminal punishment system in Qin and Han Dynasties. There are death penalty, corporal punishment, labor punishment, property punishment and relocation punishment. The death penalty is a punishment that deprives people of their lives, with names such as beheading and abandoning the city. Corporal punishment includes beating, licking, cutting off left and right toes and castration. As an external symbol of punishment, corporal punishment is generally used in combination with labor punishment. The types of servitude are Dan, Ghost Fu Baizhen, Scotty and Li's concubines. Judging from the available data, there was no sentence for criminals before Emperor Wendi's penalty reform. Due to the irregular promulgation of the emperor's pardon, the punishment of hard labor should actually belong to the irregular punishment. Generally speaking, the penal servitude is graded according to the content of penal servitude, but the name of penal servitude is not necessarily consistent with the content of penal servitude. For example, it is usually said that men build cities and women pound rice, but the labor that men and women engage in is often beyond the scope of building cities and pounding rice.
Under the punishment of corporal punishment and hard labor, there is one sentence that can be completed and tolerated. Say that finish this sentence, it is Chengtou. Tolerance for punishment is third-class, that is, tolerance for being a ghost, tolerance for being a servant and tolerance for being a shepherd. Don't impose physical punishment on your fingers, and keep your body intact; Tolerance is to remove needs, which is also a general term for a class of crimes. The reform of punishment, the abolition of corporal punishment and the determination of punishment amount in the period of Emperor Wen are of epoch-making significance in the history of ancient punishment in China. After the punishment reform of Emperor Wendi and Emperor Jingdi, the sequence and term of hard labor punishment were gradually determined, namely, city punishment, city punishment, ghost punishment, sheep punishment and punishment. Among the property penalties, there are mainly fines and redemption. Fines are generally applicable to misdemeanors, and the level of fines is determined according to the severity of the crime. The function of redemption penalty is different from statutory penalty and substitute penalty. In two years, the law firm listed the redemption level as six levels: redemption, two pounds and eight ounces of gold; Redeem the city, the ghost pays white, and the gold is a catty; Redemption, corruption, gold a catty of four Liang; Redemption, jealousy, a catty of gold; Redemption, twelve taels of gold; Redemption, 82 taels of gold. Bamboo slips of Zhangjiashan Han Tomb, 150. The punishment of moving is the punishment of exile and the punishment of forcing prisoners to move to designated areas. The common way of transferring punishment in Han Dynasty is to guard the border, and the number of years stipulated in the two-year law varies from one year, two years and four years.
During the Qin and Han Dynasties, the highest judicial organ in China was Tingwei Temple, and its chief was Tingwei. Ting Wei is composed of officials in charge of left and right, left and right equivalence. Ting Wei is in charge of national justice, responsible for hearing major cases and accepting and hearing difficult cases reported by local authorities. Ting Wei is also in charge of some prisons involving senior officials of the imperial court and consorts of the royal family. County magistrate, county magistrate, with judicial functions, handling local prison cases; Villages below the county level also have certain judicial power, which is responsible for catching thieves, mediating disputes and rehabilitating wrongs. "Han Law" clearly stipulates the judicial authority of county magistrate. Under normal circumstances, the county magistrate is not allowed to break the prison or be imprisoned. If the officials in the department handle the case improperly outside the scope of their functions and powers, the officials who are not in the department will bear joint responsibility. In the seventh year of Emperor Gaozu, an imperial edict on suspicious prisons was issued, which stipulated that the reporting procedure of suspicious cases was: the county magistrate ordered the county magistrate to protect the country and the Emperor Tingwei. In other words, when a place encounters a difficult case, it needs to be reported step by step. If Tingwei can't handle it, report it to the emperor, and the emperor will make the final decision. This is not only the power level of administrative management, but also the link distribution of judicial authority. If judicial officials fail to hear cases fairly and justly according to law, they will face charges of irrationality, inaccuracy and failed judgment.
During the Qin and Han dynasties, the litigation term at that time was called accusation: accusation was that the parties directly filed a lawsuit with the judicial organs, and disintegration was that the government or bureaucrats directly corrected the criminals. In the process of acceptance and trial, the government should take the charge of disintegration as the basis and shall not arbitrarily seek other charges. Immediately after the alleged illegal act, arrest and interrogate. The letter of accusation in Qin bamboo slips clearly embodies the procedure of accusation and trial, and so does the Han law. At the beginning of the investigation, officials are obliged to inform the parties that they should seek truth from facts and strictly prohibit perjury. On the basis of trial, under normal circumstances, a judgment is made according to laws and regulations, and the trial result is reported to the superior. If the parties think that the judgment is improper, they can request the above retrial, which was called begging at that time. After the judgment takes effect, it must be executed according to the regulations.