::: * Journal for Legal History Studies
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第26期 Issue: 26 period
Date: 2014/12

Articles You, Yi-Fei How to “read” the Qin and Han funerary law?──A Case Study in Zhangjiashan “The Legal Text of Year 2”
Chen,Hwei-Syin The changed and unchanged of the law andSociety in Ming and Qing China – aObservation of legal Documents
Author: Terada, Hiroaki Translator: Chang, Teng-Kai Between ‘Civil’ and ‘Criminal’ Procedure: Handling Homicide Cases at the District Level in Qing China
Lee, Dian-Jung Stickman, Servant, and Hooligan: The Development about “Bare Stick” Legislation and the Influence of Manchu Bondservants in Qing (1644-1795)
Articles & Replies Review Li, Jun-Fang Questions on Laws and Regulations ofthe Han Dynasty
Li, Yun-Long A new exploration of “Duanli” in the Song dynasty
Chiang, Yu-Lin Homeland and Colonial Identities: Chen Cheng-po and His Works
Prominent Legal Figure Yu, Ming Narrative and Account of Professor Yang Chongsen’s Legal Career
Book Reviews Chen, Chang-Ning An Introduction to Wu Peilin “Civil Disputes and Legal Order in Counties in Qing Dynasty”
People & Book Review Shen, Wei People and Events on Note of Peking ImperialLaw School by Editor Xiong——A Close Viewto the Three Outstanding Persons of XiongFamily and Anhui Law Study Society

 


How to “read” the Qin and Han funerary law?──A Case Study in Zhangjiashan “The Legal Text of Year 2”

You, Yi-Fei

Abstract

This is a case study in Zhangjiashan “The Legal Text of Year 2”. Thepaper tries to analyze the reading methods of the Qin and Han funerarylaw, for instance, word, meaning, grammar, sign in bamboo slips, error and writing of text, bamboo slips arranging, historical vision and burial environment. First, the paper reads the words of the Qin and Han funerary law written on bamboo slips. Then, the paper reads the historical vision behind the law. Finally, the paper “reads” the burial environment of the bamboo slips. As the result, this paper tries to more comprehensively analyze a variety of reading methods of the Qin and Han funerary for the reference of legal history scholars.

Keywords: Shuihudi-Qinlü, Yüelu bamboo, Zhangjiashan-Hanlü, Qin and Han law, funerary bamboo slip

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The changed and unchanged of the law andSociety in Ming and Qing China – aObservation of legal Documents
 
Chen,Hwei-Syin

Abstract
 
Most legal scholars think that Qing China had adopted the legalsystem of Ming China. Therefore the most rearch of the Qing legal historyhave almost focused on “The great Qing code大清律例”. However, thePopulation of the Qing Dynastie have been changed, in the Qing-Dynastythe population are not only people of the Ming, but also included thepeople of Manchuria and Mongolian.How the Qing Government had ruled the register of the Population todeal with the change of the population is the main thesis of this paper. Thispaper focused on a comparative analysis of “The Great Ming code大明律” and “The great Qing code大清律” and “The Regulations of theMinistry of the households欽定戶部則例” in the Qianlong period of QingDynasty.This paper try to find out how the Qing Dynasty had been used theexisting legal structure of the Ming Dynasty to ruling the majority Hanpeople and created the new legal system to respond the new social changewith “The regulations of theMinistry of the households欽定戶部則例”,especially focused on the regulations of the Household and on theregulations of Household and Service.
 
Keywords: The great Ming code, The great Qing code, law of Household,Household and Service, Banners, Provincial People, Distinctionof Manchu and Han People

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Between ‘Civil’ and ‘Criminal’ Procedure: Handling Homicide Cases at the District Level in Qing China

Author: Terada, Hiroaki

Translator: Chang, Teng-Kai

Abstract

Regarding the judicial system of traditional China, there is a scholarly description that “Cases that were related to civil affairs (Huhun Tiantu) were concluded at the district level (Zhouxian, i.e., the lowest level of administration), whereas heavy criminal cases (Mingdao Zhong’an) were reported to higher officials [for the sake of review]”. This well-established characterization, which also frequently appears in Chinese legal history textbooks, leaves the impression that all cases were seemingly objectively divided into two categories (i.e., ‘civil’ and ‘criminal’) at the district level. However, in reality, any single case was initially heard at the district government and the decision as to whether to settle it locally or report it to upper organizations, and if so what kind of punishment should be appealed before the report, was made through a variable and complex procedure. Surprisingly, the real condition of handling a heavy criminal case at the district level, the most important stage in the whole judicial process for such a case, has not sufficiently been explored and discussed so far. One reason for this seems to be that there is no case that was reported to higher officials by the district government in the Danxin Archives (Danxin Dang’an), which have been the principa l primary sources for the study of China’s traditional judicial system.

In contrast, this paper is based on more than 700 homicide cases fromthe Baxian Archives (Tongzhi era), which allow the author to focus oncases that were reported to higher officials from the Baxian government.These shed light on (a) the judicial procedure of handling homicide cases atthe district level, which was very closely similar to that of judging a civilcase, including the procedures that were hidden behind the judicialdocuments themselves, and (b) the social background of the cases―mostof which prove the existence of private monetary settlement. In order toreach these conclusions, the paper analyzes the contents of judicialdocuments in which cases were reported and initiated by the relatives ofthe dead by appealing autopsy but were finally judged as a death byaccident, at the district level, without a report to the upper institutions. Indoing so, this paper discusses how the ‘criminal cases’ were distinguishedfrom the numerous cases that were accepted by district government and thesocial foundation upon which crimes were judged.

Keywords: Baxian Archives, Heavy Criminal Case, Confession Record,Review by Higher Officials, Private Settlement

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Stickman, Servant, and Hooligan: The Development about “Bare Stick” Legislation and the Influence of Manchu Bondservants in Qing (1644-1795)

Lee, Dian-Jung

Abstract

In the Ming Dynasty, “bare stick” meant “rogue” and cheater, but the meaning of “bare stick” gradually was be complicated in Qing. Recently academics presented high interest on “bare stick legislation” including of the developing history about the ordinance. However, researchers seldom notice “the Manchu feature” resulted from “bare stick legislation”. First of all, the making of “bare stick legislation” in Ming was used to punish the servants who were taken by the noblemen,but it was aimed the servants of Manchu Eight Banners in next dynasty. Furthermore, “bare stick legislation” was applied to the civil disorders with serious punishment after YongZheng reign. Until Qianlong reign, the legislations and cases which were adopted on “bare stick legislation” involved the crime of extortion, fraudulent, and rape. Generally, “bare stick legislation” had made historical influence on the offense of rogue in modern Criminal law in China.

Keywords: bare stick legislation, hooliganism, the servants of Manchu Eight Banners, Manchu feature, extortion

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Questions on Laws and Regulations ofthe Han Dynasty
 
Li, Jun-Fang
 
Abstract
 
Academic circles form two opposed views on whether the laws andregulations in Han Dynasty is in legal form or not. Except Shuzo Shiga,Zhang Jianguo and Cong Xibin, most of the scholars think that there arelaws in the Han Dynasty. But few scholars systematically discussed andanalyzed on it. It seems that the existence of laws in Han Dynasty is nodoubt. In fact, no one clearly defined its connotation, which is just oneaspect of question. The articles with comprehensive and thoroughdiscussion are still in question. Not only clear basis is hard to find in a greatnumber of historic materials, unearthed information is also unable to prove.
 
Keywords: the laws and regulations of the Han, legal form

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A new exploration of “Duanli” in the Song dynasty

Li, Yun-Long

Abstract

“Duanli” was an important part of the legal system in the Song and the Yuan dynasties. In the Song dynasty, “Duanli” was based on the cases, as well as connected closely with the statute law, which played an irreplaceable role in the judicial judgment. The style of “Duanli” was more and more normalized in the Song dynasty, which tended to the statute law and occupied an important position both in the legislative and judicial activities. The nature of “Duanli” is a legal form, and is also a case law. The wide use of “Duanli” in the Song dynasty was not accidental, yet it was the origin of various elements’ influence such as politics、economic and society. Besides, the complementary and alternative functions of “Duanli” determined that it can run parallel with the statute law.

Keywords: Song dynasty, Duanli, legal form, case law

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Homeland and Colonial Identities: Chen Cheng-po and His Works

Chiang, Yu-Lin

Abstract

This article takes the two artworks of Taiwanese artist Chen Cheng-po,“Song Yi Tu” (Sending off the Conscripts, 1944) and “Qing Zhu Ri” (Celebration Day, 1946), as examples to illustrate the Taiwanese cultural struggles over identities during the regime transition from the Japanese Empire to the Republic of China. In this way, I shall ponder the political and legal issues on the dual structure of colonial/anti-colonial and ruling/being ruled in Taiwan. Hopefully, this article may be helpful for the Chinese people all over the world to understand the interactions between the history, culture, society, and law in Taiwan.

Keywords: Chen Cheng-po, homeland, colonial identity, local color, 228 Incident

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Narrative and Account of Professor Yang Chongsen’s Legal Career

Yu, Ming

Abstract

This article is the narrative and account of Professor Yang Chongse’s legal career. The main source is face-to-face interviews with Prof. Yang, with reference to his writings. Prof. Yang moved from Maitland China to Taiwan in his boyhoods, and studied in New York University after graduated from Taiwan University. Prof. Yang hold severl important positions in academic circles and political circles, and keep the patriotic heart all along, advance bravely in spite of all setbacks. Prof. Yang have made great achievements in the research areas of Intellectual Property, Trust Law, Arbitrition Law and American Law. He always keeping concern for the fate of nation, and striving for the progress of nation and people’s livelihood. Prof. Yang’s oral history, is not only his own legal career, but also reflects the value pursuit and spilirituality of a generation of Taiwan legal scholars.

Keywords: Yang Chongsen, Legal Career, Oral History

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An Introduction to Wu Peilin “Civil Disputes and Legal Order in Counties in Qing Dynasty”

Chen, Chang-Ning

Abstract

In recent years, Chinese legal historians have been discussing the topic of civil disputes and its solution in the Qing Dynasty. The availability of county archives contributed a lot to the research on the topic. Wu Peilin’s “Civil Disputes and Legal Order in Counties in Qing Dynasty” is one of the outstanding works which focus on this filed. The book firstly reviews the development of the research on legal history in Qing Dynasty, and introduces the situation of the arrangement of important county archives. Then the book discusses the actual state of civil litigation and its details among counties in Qing Dynasty. At last, professor Wu summarizes the counties officers’ aim and thinking in dealing with civil procedure. The book holds the opinion that the county officers care the most about the recovery of social order.

Keywords: Legal history in Qing Dynasty, Civil Disputes, Social Order;County archives, Nanbu county archives

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People and Events on Note of Peking ImperialLaw School by Editor Xiong——A Close Viewto the Three Outstanding Persons of XiongFamily and Anhui Law Study Society

Shen, Wei

Abstract
 
The foundation of the Peking Imperial Law School in the late of Qingdynasty marks the beginning of standard legal education in modern China,while course handouts of the school act asthe main carrier to spread lawknowledge. Note of Peking Imperial Law School was elaborately compiledby previous students of the Peking Imperial Law School named XiongYuanham, Xiong Yuankai and Xiong Yuanxiang regarding related coursehandouts in the school as blueprints. Anhui Law Study Society haspublished more than one edition of the series of books, which makes itpossible for advanced law knowledge to be spread more extensively.Moreover, Note of Peking Imperial Law School by editor Xiong has gonethrough a copyright infringement when being published, it had gonethrough many twists and turns before it was able to be passed on andgenerate even more profound significance. The series has played a vitalrole in the dissemination of new legal language, the popularization of basiclegal ideas, the construction of a modern law discipline system etc., thushas become one of the three law books and teaching materials in the lateQing Dynasty and the early Republic of China that have laid thefoundation of the science of law in modern China.
 
Keywords: Three Outstanding Persons of Xiong Family, Anhui LawStudy Society,Note of Peking Imperial Law School, ChineseModern Law Education

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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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