In the long process of development and evolution, China's ancient judicial system has unique and distinctive features different from other legal systems in the world. A series of systems established in ancient China, such as judge responsibility system, examiner supervision system, recusal system and death penalty reconsideration system, are all relatively good systems in ancient justice, which not only played a beneficial role under the historical conditions at that time, but some systems still have certain reference significance for our socialist legal system construction today.
Looking at China's 4,000-year-old ancient judicial system, we can summarize the following basic characteristics.
(a) highly centralized, the emperor has supreme power.
This is the most essential feature of the judicial system in China and even the traditional legal system in China. China's ancient society was always ruled by absolutism, and the law originated from the imperial power and was used to safeguard it. The traditional judicial system in China has lasted for thousands of years from germination, development, maturity to disintegration, among which the ideological principle of imperial power is the most obvious.
The supreme rulers of past dynasties practiced personal dictatorship with their supreme power. The "life" of the monarch in slave society is the law, and the emperor in feudal society has supreme power. The emperor is both the highest legislator and the highest judge. Since the establishment of feudal autocracy in Qin dynasty, the supremacy of imperial power has always been the basic organizing principle of state power, and it is also a concept widely accepted and believed by people from all walks of life. Confucianism regards "Three Cardinals and Five Permanences" as the most fundamental ethical principle, among which "the way of monarch and minister" is the core, and monarchical power is always in an irreplaceable central position in both social and political life. In terms of legislation, feudal monarchs "have a heavenly constitution in their mouths" and legislate by their own will, and the laws of past dynasties are finally expressed in the form of the emperor's personal will. In the field of judicial trial, feudal emperors held the fate of their subjects and had the power to kill and seize them. From the Qin Dynasty to the Qing Dynasty, the emperor has always been the highest trial level of the state judicial organs, holding the final adjudication power of all major cases.
Judging from the establishment of judicial organs, the ancient judicial organs in China experienced a historical evolution from simple to complex, from coarse to fine, and finally to centralization. In the judicial system, from the Shang and Zhou Dynasties to the Ming and Qing Dynasties, the ancient judicial organs in China gradually changed from the unitary system of Si Kou or Ting Wei to the separation of the three laws, which was a mechanism of division of labor and mutual restraint and worked well. However, from the Song Dynasty to the Ming and Qing Dynasties, the power of the three legal departments gradually concentrated in the Ministry of Punishment and was finally controlled by the emperor. In the trial, justice became a royal tool, and all major and difficult cases had to be decided by the emperor himself. Only when the emperor exercises the final judicial power can the emperor directly understand and intervene in judicial work through direct prosecution and detention. In addition, the trial of other cases should also be reported to the emperor regularly. When the emperor handles a case, he can abide by the existing laws, or he can act expediently and ignore the laws. Because the emperor holds the ultimate judicial power, such a case will be considered as final only after the trial of the emperor, so there is no modern system of "two trials and final adjudication", and the case is transferred from trial to retrial step by step without the restriction of final adjudication. Before Qin dynasty, ordinary cases could be solved by county judicial organs themselves, and the system of reporting suspected prisons was implemented in Han dynasty. Later, it gradually evolved into a trial-level system, and it was fully mature in the Ming and Qing Dynasties. The case was filed at the county level, but it was closed.
After that, it is necessary to register the case in the "circulation book" and wait for the inspection by the higher authorities. Major cases should be reported directly, so only the emperor as the highest judge has the final judicial power. Therefore, the justice and integrity of China's ancient judicature did not depend on the quality of the judicial system itself, but largely on the wisdom and fatuity of the emperor. Judicial order is often destroyed by human factors, which eventually leads to judicial darkness, which is the inevitable result of high centralization.
Judicial and administrative confusion
The unity of judicature and administration is another remarkable feature of China's traditional judicial system. This feature is as follows: in the central institutions, the emperor not only often decides cases by his own will, undermining the established "common law", but also establishes a system that allows many administrative, military and even court institutions to participate in trials, so as to limit the possible tendency of independence of the judiciary and make it completely obedient to himself. Therefore, it can be said that in a centralized autocratic country, it is an inevitable result that the administration and the judiciary are not divided.
China's judicial organs in past dynasties were all branches of the administrative department and one of the functional departments of the imperial court, but they were not independent. From the local to the central, the judicial department is subordinate to the administrative department. In the central government, Ting Wei in Qin and Han Dynasties was one of the nine ministers of the central government, and the punishments department was one of the six departments of the central government in the Tang, Song, Ming and Qing Dynasties. However, these judicial organs must absolutely obey the orders of the emperor and are generally subject to the central administrative centers such as the Prime Minister and the Cabinet. At the local level, the judiciary is subordinate to the administration. In Shang and Zhou dynasties, local judicial power was controlled by governors, and after Qin dynasty, it was controlled by local administrative organs at all levels, such as county chiefs and county magistrates. Although local governments also have full-time judicial officials, such as Jue Cao (Han Dynasty) and Judicial Counselor Army (Tang Dynasty), at the trial level, the lower level is subject to the administrative subordination formed by the higher level, and the judicial power has never been independent.
If the traditional society in China has a division of labor between administration and justice in the setting of central institutions to meet the needs of social management, then at the local level, the unity of imperial power is directly manifested in the unity of justice and administration. The local governor is a judicial judge at the same level, and judicial trial is one of the main responsibilities of the local governor. There is no need to set up a judicial organ to perform judicial functions outside the administrative organ. If there is a mistake in assisting in solving the case, the police officer must bear the responsibility.
It should be said that this phenomenon that local officials are personally in charge of judicial trials or the judicial administration is unified is unreasonable. On the one hand, this is an inevitable stage of the development of the judicial system. In ancient times, when the division of labor in various fields of social management was not obvious, the integration of the two could improve management efficiency and effectively meet social needs. From this point of view, the uniqueness of the unity of justice and administration in China's traditional judicial system is not the form of this unity itself, but mainly the long-term continuation of this form. This involves the other hand, that is, the most important one, that is, the influence of the autocratic imperial power mentioned above. In ancient China, local officials were only the agents of the emperors in various places, or managers based on the imperial power of "respecting the city and valuing wealth and selling wisdom". Therefore, his existence and how to exist only depend on the local demand of autocratic imperial power. As has been analyzed above, the most essential feature of autocratic imperial power is power monopoly. He is unwilling and never allowed to implement the dual structure of separation of administration and justice at the local level, because it will actually hinder the effective implementation of his will. Therefore, it is the most logical system for the local governor to direct the administration and justice, and the criminal name Qian Gu has become the most important management position for the local governor.
The confusion between administrative and judicial trials has led to some bad consequences. For example, handling judicial affairs by administrative means. Because handling judicial affairs is only one of the administrative functions of officials at all levels, or confused with administrative functions, the two are often confused and difficult to distinguish, which leads to the tendency of local officials to handle judicial affairs in an administrative way. Its adverse consequences are authoritarianism, arbitrariness, contempt for judicial procedures and so on. Then, it lowers the professional quality of judicial personnel. Local governors are also in charge of judicial affairs, and their legal literacy determines the quality of their judicial cases. In ancient China, local officials mostly adopted the methods of recommendation, imperial examination selection and emperor appointment. Most important criteria for elected officials did not include legal literacy, so the legal literacy of local officials at all levels was generally not high. China has a history of more than 2,000 years.
However, in the period of feudal autocracy based on economy, there can be no soil of rule of law, so there can be no extravagant hope of judicial independence, and justice is only a part of administrative activities.
(3) Civil punishment
Although there was a simple distinction between civil and criminal in ancient China since the Zhou Dynasty, it never formed the definition of civil and criminal in the sense of modern judicial system. As the saying goes, "Every generation has its own laws". In ancient China, there was no distinction between civil law, criminal law and procedural law in legislation, but all laws were integrated, with punishment as the main factor, civil punishment mixed, and substantive law and procedural law mixed. In the judicial system, there is no distinction between punishment and people, and heavy punishment is lighter than people.
There are many reasons for this phenomenon:
First of all, the natural economy has always been dominant, and the development of commodity economy is relatively weak. Because the civil legal relationship is the legal expression of the general requirements of commodity economy life, the development of commodity economy directly determines the development of civil law. In ancient China, backward and conservative natural economy occupied a dominant position for a long time, which hindered the development of civil legal relations.
Secondly, the harsh rule of feudal autocracy always carried out the policy of emphasizing agriculture and restraining commerce. During the two thousand years from the Qin Dynasty to the Qing Dynasty, the autocratic system was constantly strengthened, which ruled out the possibility of legislation in any city with developed commercial economy. Under the autocratic system, the maintenance of imperial power is consistent with the consolidation of the country, which is the main concern of legislators. As for the interests between private individuals, they are regarded as "details" and insignificant. In order to protect the autocratic system based on natural economy, feudal rulers of past dynasties vigorously promoted the policy of emphasizing agriculture and restraining commerce. Since the Ming and Qing Dynasties, the implementation of the policy of banning the sea has seriously damaged overseas trade and budding capitalist factors. In this case, businessmen also regard land management as a more reliable source of financial resources.
Third, the personal attachment relationship exists for a long time. The "equality of private law" in the legal relationship of rights and obligations cannot be widely provided, and "equality of private law" is only an important condition for the development of civil law.
Fourth, family law and clan rules play a practical role in adjusting civil legal relations within the clan. These so-called family laws and rules are essentially customary laws within the family, which play a practical role in adjusting civil legal relations such as property, inheritance and marriage within the family, and are interlinked and complementary with national laws.
Because there is no way to distinguish between civil litigation and criminal litigation, let alone the division between civil litigation and criminal litigation, which is basically a set of criminal litigation. Many marital property problems in ancient China were solved by criminal means. For example, according to the laws of the Tang Dynasty, if a woman betrothed fails to pay her debts, she will be punished if she submits a marriage certificate, has a private contract and reneges on her marriage. Therefore, a considerable part of ancient family marriage cases were criminal cases. There is no special code in China's ancient procedural law, but there are provisions on litigation in Tang law and Ming and Qing laws, such as litigating in Tang law and suing and arresting in Ming and Qing laws. The ancient judicial system in China was to safeguard the interests of the privileged ruling class, and substituting punishment for the people also reflected its purpose of suppressing the people and consolidating the rule.
(D) the combination of etiquette and law, with Confucianism as the theoretical basis.
Patriarchal clan system and family rule linked by consanguinity are the foundation for the existence and consolidation of China's ancient state. In ancient Chinese law, ceremony occupies an important position. "Ceremony is the first and the foundation of politics" is both a moral norm and a legal norm.
Qin Shihuang ruled the country by law. In the early Western Han Dynasty, it was generally "overlord and mixed soldiers". By the time of Emperor Wu of the Han Dynasty, due to the policy of "ousting a hundred schools of thought and respecting Confucianism alone", Confucianism, which originated from the study of Confucius and Mencius, became the theoretical basis and guiding ideology of feudal law for nearly two thousand years, and gradually formed a feudal legal ideological system characterized by the confluence of etiquette and law.
From the Han Dynasty, with the establishment of Confucianism and the advocacy of Han Confucianism, the road of ritual into law was opened, and the combination of ritual and law reached its peak in the Tang Dynasty. The Law of the Tang Dynasty clearly declared that "morality is the foundation of politics and religion, and punishment is used for politics and religion", and both of them should not be neglected, such as "morning fainting and autumn fainting". The combination of ceremony and punishment is mainly manifested in the following aspects. First, the code of conduct adjusted by ritual in patriarchal ethics constitutes feudal law.
The basic content of. Second, comity plays a practical role in adjusting the law in civil and minor criminal cases that belong to mediation. Third, for the judgments of some cases, "propriety and righteousness are inconsistent", and the relatives are humble and the punishment is different for the same crime. Fourthly, the "five clothes" system to distinguish relatives and friends by blood has become an important basis for sentencing. The "five clothes" system began in the Han Dynasty. Since the Yuan, Ming and Qing Dynasties, it is of great significance not only for criminal trials, but also for the settlement of civil disputes to list mourning clothes at the top of the criminal law. Putting mourning at the top of criminal law is another concrete manifestation of introducing ceremony into law.
The influence of Confucianism on the feudal judicial system is mainly manifested in the following aspects: first, it confirms the inviolability of monarch, patriarchy and husband's right advocated by the theory of "the monarch is the minister, the father is the child, and the husband is the wife" in the form of law, and offenders are severely punished; Second, it runs through the spirit of "morality first, punishment second" and "punishment and education are obvious". In China, moral punishment has been used as a means to maintain rule for a long time. After the full demonstration of Confucianism in Han Dynasty, the function, scope of application and relationship of moral punishment are more clear. After the Han Dynasty, most rulers took "morality first, punishment second" and "punishment as the key link" as the established policy of legislation and judicature. Third, the prison was fixed in the Spring and Autumn Period, and the civil litigation was actually adjusted by courtesy, and Confucian classics were compiled; Fourth, confirm the execution in autumn and winter, thus institutionalizing the Confucian thought of "heaven punishment" Many legal contents, from "quoting the classics to determine the prison", execution in autumn and winter, to the provisions of "ten major crimes" and "eight suggestions", all take the hierarchical ethical relationship of Confucianism as the standard of conviction or pardon, which is highly respected by rulers of all dynasties. Therefore, including the judicial system, the "ceremony" is also combined with it, and the spirit of "the combination of punishment and ceremony" and "the ceremony is put into punishment" runs through it. Relatives who bring their younger generation to sue their elders, wives or husbands will be severely punished or even sentenced to death, otherwise they will be innocent or lightly sentenced. This not only reflects the Confucian thought of attaching importance to "ceremony", but also reflects the humble position of ancient women in China, and also reflects the inseparable relationship between the judicial system and ethics in China.
(5) Whoever extorts a confession by torture shall be determined according to the crime committed.
Extorting confessions by torture is an extremely barbaric system widely used in dealing with criminal cases at home and abroad in the Middle Ages. In China, it is also an interrogation method for rulers of past dynasties to realize their judicial opinions.
In ancient China, confessions were generally used as the basis for judging cases. Without a confession, the case cannot be closed. "Confess guilt and repent" refers to the final judgment of guilt and guilt based on confession. Therefore, obtaining confessions has become a crucial link in the trial process, and various tools for extorting confessions by torture have been derived from it, and the parties often feel wronged because they can't stand the pain of flesh and blood.
From the Western Zhou Dynasty, China began to interrogate people, mainly plundering. During the Qin and Han Dynasties, although torture was not found in law, according to the records of Yunmeng Qin bamboo slips, interrogation has become a legal system in the Qin Dynasty, which has been widely implemented and actually legalized. Emperor Han Jing stipulated the specifications of the instruments of torture. During the Northern and Southern Dynasties, torture began to be written into law. For example, the Liang dynasty initiated sentencing (fasting and drinking), and the Chen dynasty stipulated vertical measures (locking prisoners in earthen enclosures and flogging them). ), and the Northern Wei Dynasty stipulated that there was a limit to hitting fifty sticks. The torture pattern in the Northern Qi Dynasty became more and more cruel and was inherited and developed by successive dynasties. Torture is unrestrained, more and more cruel, and does everything possible. In the Tang Dynasty, torture was institutionalized, and the laws of the Tang Dynasty made specific provisions on the object, conditions, tools, parts and procedures of punishment and how to implement it. In addition to legal interrogation, there are various illegal interrogation methods. Torture was inherited and developed by successive dynasties, and gradually legalized, becoming a trial system that can be reasonably applied to judging cases. Because of this, the method of extorting a confession by torture is extremely cruel.
The ancient system of torture was linked with the evidence system that emphasized confession and confession. Although ancient litigation also collected and used physical evidence and witness, it paid more attention to on-site inspection, but paid more attention to confession, which was the main basis for finalizing the case. Under normal circumstances, no confession can be finalized, and this emphasis on confession will inevitably lead to extorting confessions by torture. Extorting confessions by torture is a distorted trial system caused by the ancient trial characteristics of China, and it is an extremely cruel means adopted by the ruling class to safeguard its rule.
conclusion
In the course of thousands of years of legal history in China, the judicial system has also experienced a historical evolution from simple to complex, from crude to refined, and from barbarism to civilization. In this process of development and evolution, there are both inheritance and innovation among the judicial systems of different generations, which reflects the civilized process of China's legal system.
The history of the ancient judicial system in China tells us that the judicial system is an important guarantee for the perfect operation of the state machine, and the construction of the judicial system is also an important factor related to the long-term stability of a country. The experience and lessons of ancient judicature always remind us of the importance of strengthening the construction of judicial system.