::: * Journal for Legal History Studies
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第25期 Issue: 25 period
Date: 2014/06

Articles Hsiao-I, Yang Nation and Law-the writing of law and philosophy of order of “Tong-Dian of Law”
Chen, Chong-Fang The Circulation, Reading, and Using of Xiyuan-lu in Qing Dynasty
Lin Wenkai The Criminal Judicial Culture during the Qing Period: a Case Study Based on Taiwan’s Criminal Judicial Archives
Tseng, Chien-Yuan Reviews and Prospects of Taiwan Constitution-making Movement: Focusing on Democratic Progressive Party
Yun-Ju Wang The Historical Development of Social Jurisdiction in Germany
Kao, Ming-shih On the Collections of Legal Precedents of the Tang Dynasty
Ma Hai-feng Rediscussion on the comment that “Tang Code was the most balanced one in the history”
Jing Xie Judicature Without Law: Dispute Settlement Mechanism of Paying off Partnerships’s Debts in Ba County in Late Qing Dynasty
Li Ming Qian Narrative and Account of Justice Zheng Jiancai’s Legal Career
Wang, Jin Historical Documents and The Research on Legal History-Reviews about Research for Excavated Texts and The legal history of Tang Dynasty

 


Nation and Law-the writing of law and philosophy of order of “Tong-Dian of Law”

Hsiao-I, Yang

Abstract

“Tong-Dian of Law” (《通典‧刑法典》) included eight articles, which were written and composed in a fashion as the mode of History of Criminal Law. In “Tong-Dian of Law”, Du-You (杜佑) listed ancient legal systems, norms, and other special legal cases, commenting on substantial historical data, so that the entire department of criminal code presented a clear and legally logical framework.

Looking at the writing system of “Tong-Dian of Law”, we could know Du-You’s conception and ideal for the legal order and history. First, Du-You used the concept of “institutions” (典), because “Tong-Dian” had the characteristics of running through ancient and modern concerning laws or institutions, in order to form his personal opinion. Moreover, he established the juristical development of the Tang Dynasty, as well as provided an ideal blueprint. For law, Du-You emphasized using and governing, in order to achieve the goal of stable social order by enlightenment. Second, most of Du-You’s efforts were made about the discussions on the context of criminal system, He paid attention to the legal continuity, in order to construct the Tang Dynasty inheriting the orthodoxy of preceding dynasties. Finally, concerning the legal thought of Du-You, he opposed corporal punishment or strict laws, but emphasized the light punishment (刑輕) and the simple law (法簡). For Du-You, his ideal legal order is the light punishment, simple law, harmony, and no litigation of society.

Keywords: Du-You, Tong-Dian of Law, the ideal society of Tang Dynasty, the legal order, the light punishment, the simple law

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The Circulation, Reading, and Using of Xiyuan-lu in Qing Dynasty

Chen, Chong-Fang

Abstract

This article uses the relevant literature and archives to investigate the spread of Xiyuan-lu in Qing Dynasty. Xiyuan-lu had became the standard of knowledge, official guidelines for autopsy, and even now there are many academics “misunderstanding” the official standard version related issues. Since a considerable number of existing historical data, this article will also investigate there are how to read, learn, and use Xiyuan-lu in Qing Dynasty.

Keywords:       Xiyuan-lu, Lüliguan jiaozhen Xiyuan-lu, wu tso, autopsy system in Qing Dynasty

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The Criminal Judicial Culture during the Qing Period: a Case Study Based on Taiwan’s Criminal Judicial Archives

Lin Wenkai Assistant Research Fellow Taiwan History Institute in Academia Sinica

Abstract

This paper discusses the criminal judicial culture’s relationship with social transformation and local governance in Taiwan under Qing rule. It utilizes the analytic framework of “legal history in local society” to evaluate central and local level of criminal judicial archives. By analyzing central level of judicial archives, this paper finds that some felonious cases were actually reviewed and ruled according to Qing Legal Code. Besides, the criminal judicial procedure in Taiwan gradually underwent four periods of change following local social unrest and the state’s response in governance. It is notable that the Qing government’s criminal judicial culture did not value restoring morality and human relations as much as maintaining the regime’s stability through the suppression of criminality.

On the other hand, by analyzing local level of judicial archives, this paper discovers that the given judicial review procedures could not function properly due to both the local administration and financial institutions’ inability to proportionally grow with an increase in local population and economic development. Facing an unbearable load of criminal cases, local courts in Taiwan could neither arrest most perpetrators nor adjudicate cases within prescribed time limits. Therefore, a local official usually concealed the majority of serious cases that fell under his jurisdiction. Only when it was infeasible to conceal the case did the official present the case to his superior for review.

Keywords: Criminal Judicial Culture in the Qing Period, Review System of Criminal Trials, Judicial Procedures, Legal History in Local Society, Local Governance

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Reviews and Prospects of Taiwan Constitution-making Movement: Focusing on Democratic Progressive Party

Tseng, Chien-Yuan

Abstract

The target of Taiwan Constitution-making Movement is to fulfill the idea of Taiwan political community through the people’s collective action as holding a plebiscite and making a whole new edition of constitution which is based on Taiwan only, excluding mainland China. Contemporary Taiwan Constitution-making Movement had risen at the time when Chiang Ching-kuo declared to cease the martial order and developed to the high tide when Lee Tung-hui pushed constitutional reform. But when Taiwan’s president had been elected directly by all Taiwan people, Taiwan Constitution-making Movement went to calm down. The reason most of people think of is Taiwan has become a de facto independent sovereignty. It is not necessary to affirm Taiwan sovereignty independent by constitution-making. Since the switch of ruling parties in 2000, the procedure of amending constitution had been changed as to be determined by the ad hoc National Assembly and by referendum in 2005. Regarding the meaning of Taiwan people’s collectively practicing popular sovereignty and creating a new constitutional order, up to now, there is almost no difference between constitution-amending and constitution-making.

However, it is extremely difficult to cross the approving threshold to change the constitutional provisions through the constitutional referendum, unless the KMT and DPP have a consensus and mobilize supporters together to vote for granted; otherwise it is extremely impossible to achieve. Thus, under normal circumstances, the constitutional changes in Taiwan’s future will be more dependent on the interpretation of the Constitution, constitutional law making and constitutional practice.

Keywords: Constitutional Change, Constitution-making, Plebiscite, Taiwan Independence, Rectification of Names

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The Historical Development of Social Jurisdiction in Germany

Yun-Ju Wang

Abstract

The division or the unification of judicial power depends on the development of legal systems of discussed countries. This is an important discussion in the judicial reform in Taiwan. This text is based on the perspectives of comparative law and the history of the multiple jurisdictions in Germany, a country where the development of judicial power is similar to that of Taiwan, especially in terms of “division of judicial power.” The author intends to focus the discussion mainly on the Social Court. From the study of the historical development of this professional and independent jurisdiction in public-law, the author will discuss the framework and the structure of the divided jurisdictions and to understand the reform and how it was successfully established. However, whether the judicial power is independent from other powers of the state, is not determined merely by whether the jurisdiction was established as a unilateral one or a divided one. From the observation of the author, the history of the formation of Germany Social Court shows a close relationship between the establishment of the independent and professional court and the discussion and development of the division of judicial power and executive power of that nation.

Keywords: Judicial reform, Jurisdictional unity, unified public law specialist jurisdiction, Social Court, Procedure, court Rules

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On the Collections of Legal Precedents of the Tang Dynasty

Kao, Ming-shih

Abstract

There were three meanings by the term “law by examples” from the beginning of Tang Dynasty: general principles of Law, general formula (or “permanent form”), and collections of the analogy of Court Cases. During the time of Emperor Gaozong of the Tang Dynasty, an official by the name of Zhao Renben compiled a book entitled “Legal Precedents”, and it was one of the kind of “collection of legal precedents”. This kind of collection was somewhat more objective, and thus carried out some regulatory function in jurisdiction. They were basically legal precedents of the central government. As for its content, based on the actual precedents, in addition to the statements of facts, the court verdict also cited some legal codes and administrative orders as basis for judgment. Emperor Gaozong once (probably around 676-697 A.D) abolished the use of law by examples, and it was not revived until the First Part of Orders of Kaiyuan Reign was put into effect in the year of 719 A.D. At the same time, these collections were used as basic textbooks for the Law Students in Imperial College. But they just disappeared after the Song Dynasty and were not seen in the bibliographies ever since.

Keywords: Collection of Legal Precedents, Zhao Renben, jurisprudence, Commentaries on the Collections of the Court Orders, Orders concerning the Households

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Rediscussion on the comment that “Tang Code was the most balanced one in the history”

Ma Hai-feng

Abstract

It has long been remarked that the remark that “scholars argued that Tang Code defined crime thoroughly according to proprieties, and it was the most balanced code in the history” has been accredited to the Abstracts of Imperial Collection of Four. As a matter of fact, the former part of this comment originates from the Treatise on penal law of The History of the Ming Dynasty; and the latter from Liu Yun. Furthermore, the “modern” means the Yuan dynasty. Through a comparative study, it can be inferred that the “ancient” may trace back to the Xia, Shang and Zhou dynasties, while the “modern” to the Qing dynasty. The “balance” of the Tang Code is mainly about its qualities of conciseness of criminal charges and magnanimity of penalty. In terms of the causes accounting for this phenomenon, they go hand in hand with its rulers’ foreign blood, open and tolerant policy and lenient spirit.

Keywords: Tang Code, Abstracts of Imperial Collection of Four, Liu Yun, Magnanimity, The ancient and modern

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Judicature Without Law: Dispute Settlement Mechanism of Paying off Partnerships’s Debts in Ba County in Late Qing Dynasty

Jing Xie

Abstract

In traditional China, National Codes had never had any norms about partnership. However, in the field of folk industry and commerce, a series of customs including the practice of debt settlement as well as the dispute settlement mechanism formed spontaneously, in their own way.

In Ba County in late Qing Dynasty, the mode of paying off partnerships’s debts was “unlimited liability shared by shares”, which could be accepted and protected by the government. Nevertheless, in some special cases, the government might also carry out modifications to change the mode into “unlimited liability shared by shares with a certain degree of joint resistance”. Besides the government, some social groups and organizations also played very important role in the dispute settlement mechanism.

Keywords: Late Qing Dynasty, Archives of Ba County, Partnership, Disputes of Paying off Debts, Dispute Settlement Mechanism

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Narrative and Account of Justice Zheng Jiancai’s Legal Career

Li Ming Qian

Abstract

This article is the narrative and account of venerated Justice Mr. Zheng Jiancai’s legal career. The main source is face-to-face interviews with Mr. Zheng, with reference to writings of Chief Justice Wang Jiayi and Justice Zeng Huasong. Mr. Zheng came to Taiwan in his early years after the Second World War, after which he gradually leaned towards the legal profession, and finally became a respectful Justice. He has always been upholding the Mencius spirit that “even with objection from millions, I will still have the courage to head on”, and adhere to integrity and the rule of law. Mr. Zheng’s oral history, is not only his own legal memory, but also reflects the social changes and development of rule of law in Taiwan over the years.

Keywords: Zheng Jiancai, Legal Career, Oral History

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Historical Documents and The Research on Legal History-Reviews about Research for Excavated Texts and The legal history of Tang Dynasty

Wang, Jin

Abstract

Professor Zheng, Xian-wen’s book, Research for Excavated Texts and The legal history of Tang Dynasty, was published by China Social Science Press. The author made a thorough textual research on several problems in the legal history of Tang Dynasty according to excavated texts and traditional documents. The book was divided into four themes, around the legal system, legal culture and legal exchange of Tang Dynasty. Excavated texts and traditional documents used in this book included Dunhuang Tibetan documents and the Northern Song Dynasty Incomplete legal text Tiansheng ling scrolls. The first chapter discussed problems of the code style. One was the original text of tanglvshuyi. The other problem was the style of Tangshi. The second chapter told some specific problems of legal operation, including vacation system, the prison management system, commercial law system, judicial accountability system and the translator in judicial process. The third chapter researched some traditional problems with new evidence, including documentary evidence, association system and military law. The fourth chapter was about legal exchanges between the ancient China and other countries.

Keywords: Zheng, Xian-wen, Excavated Texts, Dunhuang Tibetan documents, tanglvshuyi

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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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