1. Introduction
"Spring and Autumn Judgment" is a method used by ancient Chinese judges to decide complex and difficult cases based on the principles of Confucian classics, especially the chronological history book "Spring and Autumn" compiled by Confucius. A special trial method that should have originated before the Han Dynasty and became popular in the Han Dynasty. A clear legal system was formed during the Wei, Jin, Southern and Northern Dynasties. The law stipulates that difficult cases should be decided based on Confucian classics. In fact, it is the legalization of Confucian thought. " The obvious cases of "Jie Jie" in the Spring and Autumn Period basically ended in the Tang Dynasty. Chinese lawyers have many criticisms of the "Spring and Autumn Judgment", but the author believes that it is a relatively special way of deciding cases and has existed in the history of China's legal system for at least 900 years, accounting for nearly one-fifth of the history of Chinese civilization. The spiritual essence of "Prison" is rooted in the deep soil of Chinese law and has had a profound impact on the entire process of China's legal system. The study of "Jun Jie" in the Spring and Autumn Period will undoubtedly have great reference value for modern justice. This article briefly explains the basic theory of "Spring and Autumn Judgment", evaluates its positive role, analyzes it based on modern justice and socialist rule of law concepts, seeks the origin and connection between the Spring and Autumn Judgment of the Han Dynasty and the modern legal system, and then attempts to think about some of the current legal systems in China. The pros and cons of laws and judicial policies.
2. The basic theory of "Spring and Autumn Judgment"
(1) In the era of Confucius and Mencius, Confucianism did not yet meet the conditions for legalization
Confucianism The failure to become a ruling thought during the Spring and Autumn Period and the Warring States Period may be related to the fact that few Confucian representatives held important positions and did not implement Confucian political aspirations. Confucius himself traveled to many countries to give lectures for a long time, and also sought opportunities to become an official. Although Confucius held three short-term official positions in the State of Lu, including Zhongdu Zai, Sikong, and Da Sikou, he was not reused in the end. He was depressed and had to study abroad. He lived until the age of 68 and died five years later. When Confucius and Mencius lived, Confucianism only existed among the people. The reason may be that it was an era of war and strife, and Confucian ideas such as "benevolence and propriety" were actually not conducive to the unification of China. Indeed, King Qin won the government and used Han Fei's legalist thoughts of "law, technique, and power" to dominate the world. He particularly emphasized the role of law and advocated "ruling the country by law", which laid the theoretical foundation for the later feudal centralized Qin Dynasty's unification. in accordance with. Legalism in governing the country exaggerated the role of law and advocated the use of heavy codes and heavy punishments for light crimes. This paved the way for the early collapse of the Qin Dynasty, the first feudal dynasty in Chinese history. The Qin Dynasty used the harsh "Qin Code" to impose excessive taxes and extortion, and eventually the people rebelled.
(2) Emperor Wu of the Han Dynasty only respected Confucianism and proposed the "Spring and Autumn Period Judgment"
After the fall of Qin, due to the continuity of the law and the limitations of the rulers' understanding, the laws of the Han Dynasty Many people copied Qin laws. With the development of productivity and the improvement of people's quality of life, society gradually became more stable. Such torture could no longer adapt to the society at that time. People were disgusted with it, and torture was not conducive to social harmony. As time went by, Confucianism gradually became deeply rooted in the hearts of the people, and its influence among the people expanded unprecedentedly. More people who accepted the baptism of Confucianism gradually entered the ranks of feudal bureaucracies. The rulers of the early Han Dynasty learned from the lessons of the Qin Dynasty's demise, and announced the abolition of the Qin Dynasty's harsh laws, and took positive measures such as "resting with the people" and "easing criminal laws." After Liu Che, Emperor Wu of the Han Dynasty, came to the throne, he was determined to explore new strategies for governing the country and select a large number of talents across the country, so that more and more Confucian figures were selected to high-level positions. Dong Zhongshu participated in the "Question for Talents and Good Strategies" for talent selection, and took part in the strategy question with the title "The Great Unification of the Spring and Autumn Annals". After gaining the praise of Emperor Wu of the Han Dynasty, he was promoted to a prominent position. Emperor Wu of the Later Han Dynasty adopted Dong Zhongshu's opinions and "deposed hundreds of schools of thought." , "exclusively respect Confucianism", making Confucianism orthodox. Dong Zhongshu had served as a Dazhong doctor, Jiangdu prime minister, Jiaoxi prime minister, etc. Even after resigning and returning to his hometown, the court would consult him every time there were major cases, so that he could have the opportunity and conditions to participate more in the judiciary. In the practice of judicial trials, Dong Zhongshu and others advocated using Confucian classics such as "Spring and Autumn" as guidance, and also organized and edited the "Spring and Autumn Judgment Biography" (also known as "Spring and Autumn Judgment"), which included 232 cases that were decided based on "Spring and Autumn" As a typical case, in the judicial trials throughout the Han Dynasty, "Spring and Autumn Jue Shibi" actually became the case law at that time.
Once any idea becomes a ruling idea, it will be fully reflected in politics, economy, culture, law and other fields at an extremely fast speed. Since Confucianism became the ruling ideology during the period of Emperor Wu of the Han Dynasty, it will surely become the guiding ideology for all work such as judiciary, and then legalize the ruling ideology, so that the ruling ideology can be fixed in the form of law for a long time. For example, if our guiding ideology is Marxism now, then our politics will be Marxist politics, our economy will be Marxist economy, and our laws will also be Marxist. Therefore, although "Spring and Autumn Judgment" was proposed by Dong Zhongshu, he simply complied with the development of the political society at that time, promoted the legalization process of Confucian thought, and met the ruling needs of the feudal dynasty.
(3) The use of "Spring and Autumn Judgment" by Han Dynasty judges
The "Spring and Autumn Judgment" advocated by Dong Zhongshu was generally used in the trial of complex and difficult cases, or Cases that are not expressly stipulated in the law shall be judged by Confucian classics. However, even if the law is expressly stipulated, if the application of the law in the trial of a certain case is contrary to Confucian classics, then Confucian classics have higher authority than the law. These Confucian classics mainly include the "Book of Changes", "The Book of Songs", "Book of Books", "Ritual", "Spring and Autumn Classic", etc. Among them, the "Spring and Autumn Classic" is placed in a particularly important position. For the convenience of future generations to decide cases, Dong Zhongshu selected 232 typical cases to compile the "Spring and Autumn Judgment Biography". The judicial officers used the "Spring and Autumn Judgment Biography" as the standard for judging cases. When there were no similar cases in the "Spring and Autumn Judgment Biography" , and then judge based on Confucian classic principles.
Most of the cases in "Spring and Autumn Judgment Bi" are based on posthumous targets, but we can still get a glimpse of the principles of the Han Dynasty's judicial officers' application of "Spring and Autumn Judgment" from the few cases that are still recorded. The first is "original conviction". Under the premise that the crime facts are clear, the motivation of the criminal is mainly examined. If a person's behavior conforms to the Confucian spirit of benevolence, loyalty, filial piety and other Confucian spirits, then even if his behavior causes social harm, the punishment can be reduced; if a person's behavior Violating the Confucian spirit of benevolence and righteousness, even if the social harm caused is not great, severe punishment can still be imposed. For example, someone's father got into a fight with someone else, and the other person stabbed his father with a knife. At this time, the son used a stick to save him. He was going to hit the other person, but accidentally injured his own father. During the trial of this case, there were differences of opinion among the judges. Some judges believed that the son had committed a felony of beating his father. The law at that time stipulated that beating his father must be punished by death. Therefore, the son in this case should be sentenced to death, while some judges The judicial judge believed that the son's intention was not to intentionally beat his father, and the son should not be sentenced to death. Such a case is easy to adjudicate today, but the ancients did not have the thinking of "justifiable defense" and "negligent injury". The judges found it very difficult, so they reported this case to Dong Zhongshu as a difficult case for handling. Dong Zhongshu used the principle of "original conviction" and believed that the son's motive was not to beat his father, but to save his father, which was in line with the Confucian spirit of filial piety, so he was exempted from the crime. Even if the same case occurs today, the judgments of judges in various countries today should not be much different from those handled by Dong Zhongshu. The second is "close relatives hide their crimes from each other", that is, close relatives can hide their criminal behavior from each other, unless it seriously damages the feudal ruling order at that time or violates the imperial power. The case in "Chun Qiu Jue Shi Bi" is: A has no son, so he picks up a baby B from the road and raises him. When B grows up, he kills someone, and A hides B. According to the law at that time, hiding a murderer would be punished severely. However, Dong Zhongshu followed the "Spring and Autumn Annals" which advocated that father and son could hide each other's crimes. Dong Zhongshu believed that they had a father-son relationship, so he did not convict A of the crime. By the Tang Dynasty, the law clearly stated that it was not a crime for father and son to hide crimes from each other.
3. The influence and value of the "Spring and Autumn Prison Judgment"
The "Spring and Autumn Judgment Prison" first advocated by Dong Zhongshu undoubtedly has a relatively large negative effect, which is mainly reflected in: first, It led to feudal judicial corruption.
Because the law at that time was very imperfect, many cases did not have clear legal provisions, and Confucian classics such as "Spring and Autumn" had a large space for interpretation, and there were many inconsistencies. With only more than 200 cases, it is impossible for the law to cover all social life. This provides convenience for feudal judges to interpret Confucian classics according to their own likes and dislikes. Second, it is not conducive to the improvement of the feudal legal system. The author believes that there is no harm in the mixed use of statutory law and case law in the Han Dynasty. However, neither statutory law nor case law has continued to be improved and enriched at the speed it should have. If there is no "Spring and Autumn Judgment" trial method, then If judicial officers do not make decisions according to Confucian classics after encountering difficult cases, although it will temporarily increase the difficulty of the trial, it will also force the judicial officers to think about how to improve the existing laws, thus promoting the revision, enrichment, and improvement of the law. Complete. When encountering difficult cases, judicial officers can make decisions based on Confucian classics, which brings great inertia in thinking and practice to judicial officers.
Everything has two sides, and "Spring and Autumn Judgment" should also be evaluated from a two-sided perspective. In fact, the contribution and value of "Spring and Autumn Judgment" far outweigh its shortcomings. It has played a major role in promoting the development of Chinese society. At the same time, it can also provide important reference and reference value for modern justice. It is generally believed that the contribution and value of the "Spring and Autumn Judgment" to ancient justice are mainly reflected in the aspects of helping to maintain national unity, promoting the Confucianization of law, correcting the lack of humanization of the law, easing social conflicts, and promoting the improvement of ancient crime theory. The author discusses it from three aspects: promoting social harmony, embodying simple humanistic ideas, and providing some inspiration to modern justice.
(1) Promoted social harmony
From the perspective of the legal system, the laws of the early Han Dynasty copied the laws of the Qin Dynasty to a large extent, that is, "the Han Dynasty inherited the Qin Dynasty system" "As a result, the laws at that time were too harsh, and corporal punishments such as tattooing, tattooing, palace cutting, and beheading of the left and right toes continued to be used. There was no clear and fixed term of imprisonment for hard labor. Harsh torture laws may have positive significance in times of war and strife (of course, they certainly have their obvious drawbacks), and are conducive to promoting social and political stability and tranquility. However, with the unification of the Han Dynasty and the rapid development of social productivity, the Kufa could no longer adapt to the development of society, and people were bound to be very hostile to it, thus causing social unrest. After 20 to 30 years of recuperation in the early Han Dynasty, the social economy recovered rapidly, the political situation became stable, and crime was greatly reduced. The cruel and barbaric punishment system is increasingly unable to meet the objective requirements of social development. For this reason, the abolition of torture and reform of the penal system have become the general trend. Before many draconian laws should be abolished but were not abolished, Dong Zhongshu put forward the legal proposition of "Spring and Autumn Judgment", which adapted to the development of society, promoted the legalization of Confucianism, and was conducive to maintaining political stability. The ideas of "benevolence, love, filial piety" advocated by Confucianism are quite humane and to a certain extent dilute the social conflicts and disputes caused by harsh laws. Judging from the trial practice of "Spring and Autumn Judgment", cases tried based on Confucian classic principles are mostly "lenient", which is also conducive to social harmony and avoids greater conflicts. For example, there is a case recorded in "Chun Qiu Jue Shi Bi": A gave his biological son B to someone else. When B grew up, A said to B, "You are my son," and B beat A out of anger. According to the law at that time, B should be sentenced to death for beating his biological father. If B is really sentenced to death, then the conflicts and disputes will be "escalated", and B's adoptive father, wife, children, etc. will have greater conflicts with A, which will also lead to their hatred of the law. Dong Zhongshu did not decide the case according to rigid legal provisions. Dong believed that if A gave birth to a son and did not raise him, the father-son relationship was in name only, so B should not be sentenced to death. In fact, as B's biological father, A cannot hope that B will be sentenced to death. Therefore, the author believes that this case is a typical case that has achieved good social results.
From the perspective of the social system, the early Han Dynasty learned the profound lesson of the Qin Dynasty's excessive levies and numerous taxes that forced the people to revolt. Guided by Laozi's thought of inaction, he adopted a policy of recuperation and recuperation.
After a long-term recuperation policy, people's lives have improved rapidly. At the same time, a large number of very wealthy merchants and landlords have been cultivated. The children of wealthy merchants and landlords are often lawless, running rampant in the countryside, oppressing the people, committing evil acts, and showing no respect for their elders, which often leads to corruption. Social contradictions have become increasingly prominent. The Han Dynasty saw this clearly and took advantage of the trend to "exclusively respect Confucianism" and regarded Confucianism as the orthodox thought. For example, the principles of the king as the minister and the father as the son were indeed able to maintain the feudal ruling order at that time. The "Spring and Autumn Judgment" promoted the legalization of Confucianism at an extremely fast speed, fixed the Confucian ruling ideology in the form of law, and played the due role of justice in politics and society. Therefore, the "Spring and Autumn Judgment" made a very significant contribution to social stability and political stability.
(2) Reflecting simple humanistic thinking
The trial method of "Spring and Autumn Judgment" embodies the "people-oriented" thinking from many aspects. The first is to respect people’s basic psychological needs. Confucianism places special emphasis on the relationship between relatives and believes that some illegal things done for relatives should be tolerated, that is, "relatives hide each other" and so on. In the aforementioned adopted son who killed someone, the adoptive father hid the adopted son. According to the law at that time, hiding a murderer should be punished with severe punishment. However, Dong Zhongshu considered the family relationship between father and son and it was very difficult for him to encounter such a thing in any case. Therefore, he believes that it is human nature for an adoptive father to hide his son and should not be punished. The second is to respect people's basic physiological needs. "The Book of Songs" says: "Food and sex are the same as sex." That is to say, food and sex are regarded as the most natural things and the most basic physiological needs of human beings. A classic case in "Spring and Autumn Judgment Bi" is that the decision is not based on legal provisions, but may be based on this sentence. There was a young woman whose husband fell into the sea while on a boat, and his body could not be found for burial. Four months later, the woman's parents decided to remarry her. According to the law at that time, remarrying before the husband's body was buried was punishable by death. Some judges at the time believed so. The original intention of the law was to punish women for their lewdness and remarriage for personal gain such as wealth, but Dong Zhongshu believed that a woman's remarriage was not considered lewd and was not for personal gain, so she was not guilty. Dong Zhongshu's decision to acquit the woman may be based on the following three considerations: 1. The woman's husband's body fell into the sea and could not be found at all. This is an objective fact. It was obvious that the body would never be found, so would the woman have to remain a widow forever and not be allowed to remarry? Obviously, such a conclusion is absurd, so the woman is not guilty. 2. The woman remarried in compliance with the orders of her parents. Confucianism emphasizes that "the orders of the parents are the words of the matchmaker." This shows that the woman obeyed filial piety and was obviously not for personal gain. 3. "Food, sex, and sex" should also be people's basic physiological needs. This case significantly reflects the "Spring and Autumn Jue Prison" philosophy of respecting objective reality and a simple "people-oriented" philosophy.
(3) Some thoughts on integrating modern justice
Since 2006, the Central Political and Legal Affairs Commission decided to carry out extensive and in-depth "socialist legal concept education" activities in the national political and legal system, among which the most The important one is "party leadership", which means that the national political and legal work must obey and serve the party's leadership, rather than weakening the party's leadership. Our formulations are "based on facts and the law as the criterion", "above judges, only the law", etc. These words are good in the first place, but China is currently in a period of social transformation, with social contradictions emerging one after another and new The situation and new problems are changing rapidly. Judges often encounter problems that are difficult to solve according to the law during trials. This requires strengthening the leadership of the party, relying on the leadership of the party to deal with the difficulties and problems encountered in the reform, and relying on the party to deal with social conflicts. disputes, rather than relying solely on the law. Currently, through the “Big Discussion and Big Study” activities for emancipating the mind that are being carried out by the national political and legal system, political and legal departments at all levels, especially the judicial organs, have a profound understanding that they cannot just pursue the legal effects of the case, but must seek legal effects, social effects, and political effects. unity of effect. For example, in Xu Ting’s malicious withdrawal case, Xu Ting maliciously withdrew 175,000 yuan despite an error in the ATM program. The Guangzhou Intermediate People’s Court sentenced him to life imprisonment for the crime of theft from a financial institution in accordance with the Criminal Law and deprived him of political rights for life.
This case has affected a lot of thinking and sensation across the country. With the attention of the media and the majority of lawyers and the public, the Guangdong Provincial High Court sentenced Xu Ting to 5 years in prison in the second instance of the case. On August 20, 2008, the Supreme People's Court approved the judgment of the Guangdong Provincial High Court, and Xu Ting's five-year prison sentence officially came into effect. In the first instance of this case, the law had to be applied mechanically, but the Guangdong Provincial High Court complied with public opinion and sentenced Xu Tingfa to a penalty of less than 100,000 yuan, which ultimately achieved good social results.
It is not difficult to understand some modern judicial systems when considering the "Spring and Autumn Judgment". In the early days of the founding of the People's Republic of China, we emphasized "strike hard." However, since the reform and opening up, with the development of social productivity and the improvement of people's quality of life, the "strike hard" system no longer adapts to the development of society. Therefore, the central government timely advocates the criminal justice policy of "combining leniency with severity". "Combining leniency with severity" means "be lenient when it is lenient, and be strict when it is strict." However, paying attention to the "lenient" side in actual operation is conducive to easing social conflicts. The Supreme People's Court has taken back the right to review the death penalty, changed the method of execution from shooting to injection, suspended and reduced litigation fees, and implemented a new "Measures for the Payment of Litigation Fees" and other systems, which demonstrate the humane aspect of the rule of law. In the new round of discussions on emancipating the mind, political and legal officials and heads of judicial organs at all levels across the country have repeatedly emphasized not to copy legal provisions rigidly, but to focus on the social and political effects of the case. This is generally good and will help make up for the legal consequences. At the same time, we must also learn from the lessons of judicial corruption caused by the "Spring and Autumn Judgment" and try to avoid the occurrence of subjective case handling.
References
1. Ban Gu, "Hanshu Biography of Dong Zhongshu"
2. Editor-in-Chief Zhang Jinfan, History of Chinese Legal System, first edition in February 2003 , Higher Education Press
3. "Taiping Yulan" Volume 640 [Z].
4. Zhao Xiaogeng, "Spring and Autumn" and "Spring and Autumn Period", "People's Court Daily" on January 13, 2003