::: * Journal for Legal History Studies
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第24期 Issue: 24 period
Date: 2013/12

Articles Lo, Tung-Hwa Issue on Household Registers and Property of Families in Tang Dynasty
Liu, Hsin-Chun From the Administrative Regulations of the Tang and Song Dynasties to Discuss the Judicial Practice of Confucianism
Du, Jin Unjust Verdict and Rehabilitation — The Three Arches Case of Jiangning Prefecture and Other Episodes in Chinese Legal Cultural History
Chu, Hong-Yuan Origin of Western Impact on Chinese Political and Juridical Culture Through 1911 Revolution
Articles & Replies Review Hafner, Arnd Helmut On「Serving Again (Fuzuo 復作)」 — Rereading the Text of the Legal Reform Decree of Emperor Wen in the Han-Annals
Zhou, Dong-Ping On the Effect of Buddhism on Chinese Traditional Law — Based on the Period of Emperor Wen in Sui Dynasty
Wu, Pei-Lin Researches of the Legal History in Qing — Dynasty in the Past Three Decades: Focused on the Local Legal History in Mainland China
Jiang, Zhao-Xin Judicial Nationalists in ROC — The Constitutionalists and Xinhai Revolutionaries in Courts
Li, Nien-Tsu From Obscurity to Light — Tracking Equality’s Rise in the Making of Chinese Constitutions
People & Book Review Sun, Jia-Hong The Scattering and Reappearing of Xue Yunsheng’s Book, Qiushen Lueli

 


Issue on Household Registers and Property of Families in Tang Dynasty

Lo, Tung-Hwa

Abstract

Household registers and property were two important issues that surrounded families. The private “family” and the political “household” often became one. However, it was unavoidable that phenomena such as “possession of common property regardless of different households” or “possession of separate property with the same household” appeared. No matter whether members of a family were in the same household register, taxes and materials could be rendered from the common property of a family when the government levied taxes on the basis of households. The person with the most authority in each household was the householder of a cohabitation family. Therefore, whether family members belonged to the same or different households, it did not influence the life of a family and its relation with the authorities. The family was a life community with common property being its feature. Common property, in fact, implied two meanings: common possession and sharing. Family members living together who had the right of inheritance were people with common possession, while those who did not have the right of inheritance could still enjoy family property. In the civil society, the impression of family property belonging exclusively to fathers was vivid, and fathers executed the management right of family property on the basis of the traditional concept of “family affairs being governed by elders.” In other words, common property presented aspect of ownership or aspect of usage right of family property, and property belonging to fathers demonstrated itsmanagement aspect. The former did not conflict with the latter, and both

held family ethics and order and property operation together.

Keywords: Tang Dynasty, Family, Household register, Co-residence and Common property, Family members living together and possessing or sharing common property, Property belonging to fathers.

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From the Administrative Regulations of the Tang and Song Dynasties to Discuss the Judicial Practice of Confucianism

Liu, Hsin-Chun

Abstract

This article first discusses the hierarchy of Administrative Regulations and Precepts of the Tang and Song Dynasties, analyzing the arrangement of Tang and Song Code and tracing the context for changes in structure and scale. The Administrative Regulations and Precepts in the Tang Code contain 59 articles and can be divided into three categories, dealing with situations when government officials disobeying emperor’s order, defying court rules, and personal ethics interfering with public affairs. The Criminal Law of Song Dynasty (song xing tong) mainly copied Tang code but added the entry of “section” (men), modifying the total number of the articles and rearranging the categories. Among these changes, adding the “authoritative order” and “imperial edicts” implies the economic development and transformation of the society during that time. Moreover, the Administrative Regulations and Precepts in the Song Dynasty Manuscript Compendium (song huiyao jigao) included the nationwide economic issues in its foods and commerce historical material section. The complete text of the total ten sections of the Administrative Regulations in the Law Code of the Qingyuan Reign (Qingyuan tiaofa shilei) are preserved in good condition to the present day, and a certain amount of articles can also be found in other administration regulations and precepts, especially the existing authoritative orders and order declaration which account for one fourth to one third of the total portion. This shows the legislation of emperor’s order became a tendency to expand.

In addition, the records of commemorative shrine and stele in the Song Dynasty and the changes of government official posts indicate the mutual influence between administration law and practice of Confucianism. According to Confucian officials’ legal principle in the Song Dynasty, the regulations of commemorative shrine must be subordinate to the law of commemorative stele. Though building shrine for virtuous government gradually lost its joint function with inspecting achievements system as it did in the Tang Dynasty, the vocabulary used in the records reflected how government officials held responsibility and self- disciplined attitude in the Song Dynasty, and the process of building stele demonstrated local official’s principle when enforcing the law and their strategy to adhering to the law. The Confucian equity reinforced the ideal at that time, which means no miscarriage of justice, helping establish the system to separate responsibility of interrogation from adjudication. To insure the order of local court and related works, the doctrine for attendant officials in official admonitions became more and more important, and the new law made by the central court encouraged the petty officials who were in charge of the lawsuit at local government became full-time positions.

This article focuses on both the government officials who pursued Confucianism and the changes of administration regulations and precepts of the Tang and Song Dynasties. By observing the Confucian government officials’ principle and judicial practice, it enables us to examine the standard of judgment from actual judicial cases.

Keywords: administration regulation, justice, trial, lawsuit, government official, parental official

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Unjust Verdict and Rehabilitation — The Three Arches Case of Jiangning Prefecture and Other Episodes in Chinese Legal Cultural History

Du, Jin

Abstract

The Three Arches case in Jiangning Prefecture during the reign of Guangxu, which shocked the whole government and public for two suspects were executed wrongly, is one of the most famous unjust verdicts in late Qing. Most of the biographical sources attribute the rehabilitation of this case to Xue Yunsheng who was a legal expert of Qing dynasty, yet are vague about the process. This article will utilize official history books, memorials to the throne, letters, newspapers, and other relevant materials, in order to verify and restore the details of the Three Arches case. Based on the aforementioned work, this article will reappraise the real contributions Xue Yunsheng had made during the process of this case, as well as revise and complement the historical records accordingly. In addition, this article will try to discuss the institutional problems revealed by the Three Arches case, thus to point out the potential deviations in practice from the design of the judicial review and ratification system.

Keywords: the Three Arches case, unjust verdict, rehabilitation, Xue Yunsheng, the judicial review and ratification system

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Origin of Western Impact on Chinese Political and Juridical Culture Through 1911 Revolution

Chu, Hong-Yuan

Abstract

Instead, we must scrutinize the adequacy of our basic assumptions about the Chinese scene.

This is John King Fairbank’s last reflection in the last paragraph of the “Conclusion” of China: A New History (Cambridge, Massachusetts: The Belknap Press of Harvard University Press, 1992), his last and could be most conclusive masterpiece. It represents the self awareness of the necessity for western intellectual to abandon their more than three hundred years self centered perception on China.

Concerning the Chinese political and juridical tradition the author after thirty nine years studies on the 1911 Chinese revolution tries hard in this article to introduce his findings on the functions and also the deep structure of an independent and efficient bureaucracy concerning the backbone of the Chinese three thousand-year successful governing. He also discusses in depth three important and very influential western scholars: Charles Baron de Montesquieu, Max Weber, and Fairbank, who treated the issue one after another via way of encyclopedia, sociological, and historical in the past three to four centuries. He tells us that the observation of Montesquieu on China in De l’esprit des lois, as well as those of Weber’s, was and still is the basis of the western conceptual distortion.

The article traces the origin of in the republican Chinese revolution through the thought of Sun Yat-sen, and proves the impact of the western Christianity from Sun’s speeches and writings after 1912 on the contribution of Christians, such as missionaries and YMCA. They, led by Sun, introduced the above distorted misconceptions to China and persuaded successfully the Oriental society to accept Parliamentary Democracy and at the same time to abandon their own tradition. With it Sun overturned not only the Qing Dynasty, but also their legacy of political and juridical culture that proves to be much advanced system for governing, at least in China.

Keywords: 1911 Revolution; China; Political and Juridical Culture; Bureaucratic System; Christian Missionary; Parliamentary Democracy

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OnServing Again (Fuzuo 復作)— Rereading the Text of the Legal Reform Decree of Emperor Wen in the Han-Annals

Hafner, Arnd Helmut

Abstract

The text of the legal reform decree of the Han-emperor Wen as preserved in the Legal treaties of the Han-Annals has been misrepresented and misconceived for several times. First, Ban Gu squeezed the decree into the context of the political debate on restoration of mutilating punishment at the beginning of the Later Han, misleadingly putting emperor Wen into the role of the great reformer who abolished mutilating punishment. Next, Yan Shigu and probably other precedent commentators raised new questions on the terms of penal servitude, centered on the question how many years of hard labor(gatherers of) firewood for the spirits (guixin 鬼 薪)had to serve. In fact,(gatherers of) firewood for the spirits (guixin 鬼薪)used to be merely a commutation for thewall builders (cheng- dan 城旦)in the penal system of the Qin and the early Han, and the search for its term of servitude in the reform decree had been stimulated by the recomprehension of penal servitude by the legal school of the later Han. In Addition, the question of servitude terms has been put under completely different light again since Gao Heng discovered that under the Qin penal servitude did not have fixed terms. After this discovery, the reforming role of emperor Wen has been often comprehended as to have introduced determinable servitude. However, the introduction of determinable servitude does not fit with the original text of the reform decree.

This paper undergoes a reexamination of the text of the legal reform decree of the Emperor Wen and the historical sources concerning the institution of Serving again (Fuzuo 復 作 ) . Based on this reexamination, we will state that there had been a transitional form of terminating penal servitude through stepwise pardoning between penal servitude without fixed terms in the Qin and determinable servitude in the new codices of the Wei and Jin.Serving again (Fuzuo 復作)refers to the part of servitude which is imposed after the process of partial pardoning, in a very similar manner before and after emperor Wen’s legal reform. The impact of the legal reform on penal servitude was limited to the regulation of the timetable of stepwise pardoning. The legal school of the later Han conversed stepwise pardoning into a concept of determinable servitude, and the new codices of the Wei and Jin embedded this new concept for the first time into statutory law. In other words, the legal institution of determinable servitude has come into existence about 4 centuries later than considered formerly.

Keywords: Serving again, the legal reform of Emperor Wen, penal status degradation, penal servitude, Qin law, the new law code of Wei and Jin, legal school of the Eastern Han


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On the Effect of Buddhism on Chinese Traditional Law — Based on the Period of Emperor Wen in Sui Dynasty

Zhou, Dong-Ping

Abstract

The revitalization of Buddhism by Emperor Wen in Sui Dynasty has a great effect on all quarters of the society, law is no exception. At the moment, the relation between Buddhism and law in Sui Dynasty is still not clear. This paper tries to clarify that the buddhist factors in the legal thought of Emperor Wen in Sui Dynasty make that, to some extent, Kaihuang Code implies Buddhist spirit. Moreover, this paper analyses complementally the reason why ten categories of major crimes became a kind of crime from the perspective of Buddhism. Besides, this paper briefly illustrates the relation between crime and sin based on ten categories of major crimes, the sin of Confucianism, Buddhism and Taoism and the effect they had on traditional law.

Keywords: Emperor Wen in Sui Dynasty, Buddhism, Ten categories of major crimes, Crime

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Researches of the Legal History in Qing — Dynasty in the Past Three Decades: Focused on the Local Legal History in Mainland China

Wu, Pei-Lin

Abstract

Notable changes have taken place on the collation of data, selection of topics, and the use of research approaches of the legal history, especially that of the local history in Qing Dynasty in the past three decades. Scholars have gradually shifted from the single perspective of institutions to official and folk data such as files, inscriptions, genealogy and contracts, and these documents, especially those of judicial files from Chous and Counties in Qing Dynasty which have been opened up and published successively, have triggered a historical data “revolution”, which has broadened the field of the traditional law history, promoted innovative research approaches, and broken many limitations of the previous researches, so that the topics have changed from the previous macro and general ones to the micro and specific ones. Overall, there are still a lot of regrets left.

Keywords: threedecades,legalhistoryinQingDynasty,collation,researches

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Judicial Nationalists in ROC — The Constitutionalists and Xinhai Revolutionaries in Courts

Jiang, Zhao-Xin

Abstract

This article mainly argues that the judicial history in Republican Era as a whole is in essence a time of legal nationalist movement. The legal changes and transitions established in the Republican judicial system can’t be achieved without those judicial nationalists who chose to work hard together for the legal transformation and acted in uniformity regardless of their ideological differences. Therefore, to understand the modernity issue in China, we have to understand these committed judicial nationalists.

Keywords: Constitutionalist Court, Xinhai Revolutionary Court, Legal nationalist Movement

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From Obscurity to Light— Tracking Equality’s Rise in the Making of Chinese Constitutions

Li, Nien-Tsu

Abstract

This short paper explores two complementary issues in the history of the modern Chinese constitution’s development. First, why the conception of equal protection of the law (“ping dung”) was alien to the Chinese. Second, how this exotic conception was assimilated into the Chinese constitution and now occupies a prominent position in modern times.

The term ping dung was not employed to represent equality until the late 19th century. It is not native to the Chinese language and was imported into the language as a translation. Li, as the core of social norms since ancient times in China, performed the critical role of distinguishing the nobility, civilians and slaves, as well as defining guan xis so that social/political hierarchy may be established. In the late 19th century, when the elites of Ching Dynasty first encountered the Western notion of political equality, they were stunned. The author cited in this paper six varying attitudes to explain how different approaches were taken by the Chinese intellectuals at the time to graft political equality into the action plans of social/political reform, leading eventually to its introduction into the constitution making process.

From late Ching Dynasty, through the Republic of China, and then the contemporary People’s Republic, the principle of political equality almost without exception sat atop every bill of rights in numerous drafts/versions of the Chinese constitution. Of all those drafts/versions, however, only two models were adopted, each advocating a unique approach in realizing political equality. This chapter of constitution making has hitherto received inadequate attention. Being placed prominently in the text of the constitution does not necessarily guarantee faithful implementation. On the other hand, if ping dung were entirely absent from the text, its implementation in the political world would be impossible.

Keywords: equality,theprincipleofequalprotectionoflaw,suspectclass, political equality, equality among racial groups


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The Scattering and Reappearing of Xue Yunsheng’s Book, Qiushen Lueli

Sun, Jia-Hong

Abstract

As one of the most famous jurists in late Qing, although Xue Yunsheng has a very wide and deep influence and too many legal writings, seemingly, he is very unfamiliar to modern persons for rare academic research about him and so little his books has left. According to a new finding of Xue’s book, Qiushen Lueli (Collected Slightly Cases for Autumn Assizes), this paper will analyze its special legal literature characteristics and rehology of versions contents. Furthermore, we will discuss the forming process of the excellent legal knowledge in the highest Ministry of penalty, and discover the historical partial truth how this kind of scarce legal knowledge was diffused and inherited by Xue’s colleagues and disciples.

Keywords: Xue Yunsheng, Qiushen Lueli, the Autumn Assizes, the Ministry of Penalty

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中國法制史學會、中央研究院歷史語言研究所主編

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