::: * Journal for Legal History Studies
*  Printer Friendly    Font Size  Font Size Small Font button Font button in the font Font Size Large Font button   

第29期 Issue: 29 period
Date: 2016/06

Articles Zhang Renshan On the Function of Disputes Resolution by Clan During Qing Dynasty
Chen Yu On Link-up of The Great Qing Code and The Codes (zeli) of the Ministries in the Qing Dynasty
Chen Chong-Fang The Promulgation of The Great Qing Code in 1743
LI Ming Life is dear, the tael is dearer: A Study on Displacing the Murderer in Homicide Cases in the Qing Dynasty
Huang Yuan Sheng Human Nature, Ethical Reasoning and Legal Principle: The Past and Present of the Immunity of Mutual Concealment among Relatives
Articles & Replies Review Chen, Hui-Fen Knowledge Transition and State Innovation: Zhang Junmai’s Study on the Transformation of Representative System in Europe, 1919-1921
Zhao, Jing Review on the text-research on the Xingfa Zhi
Prominent Legal Figure LIU Meng A Legal Scholar: Wang Shih-chieh’s Academic Thought
Book Reviews Du, Jin The Principles and the Structure of Qing’s Legal Order: A Comment on Rights and Injustice: Collected Works on the Chinese Legal History of Terada Hiroaki

 


On the Function of Disputes Resolution by Clan During Qing Dynasty

Zhang Renshan

Abstract

Mediation of disputes among clan members by family rules or clan diciplines is one of the most important functions of a traditional clan. Preventive propgation against litigation and promotion of tolerance and forbearance to eliminate dispute was an ideal model of governance for the vast majority of people. After a dispute took place, mediation is considered a preferred resolution. Because it can maintain unity within the clan and social order. Clan rules do not belong to national legal systems, but overall they were closely related to and complementary with state laws working together to maintain social order at the grassroots level. Family and clan were where people were taught to comply with the rules, and a clan can play key role to resolve disputes, thus reducing the judicial burden for the state while lowering the cost of justice for people.

Keywords: QingDynasty,Clan,ResolvationofDisputes

top

On Link-up of The Great Qing Code and The Codes (zeli) of the Ministries in the Qing Dynasty

Chen Yu

Abstract

The Great Qing Code and The Codes (zeli) of the Ministries were complimentary and constituted the core of the law of the Qing Dynasty, they were the most important tools for the ruler to rule the Empire. Becuase the activities of various departments had a cross relationship, the rules had a common source and The Great Qing Code Lee mainly existed as a criminal code, The Great Qing Code and The Codes (zeli) of the Ministries thus were linked.By absorbing the essence of the Codes (zeli) of the Ministries, Refering to them, and as the standard of them, The Great Qing Code and the Codes (zeli) of the Ministries were closely connected. Broadly speaking, in the early period of the Qing Dynasty, they connected to a relatively high degree, thus promoted the unification of the legal system, Simplified the length of the code and strengthened the generality of the code, at last constructed a strict legal system. But in the late Qing Dynasty, The Great Qing Code and the Codes (zeli) of the Ministries were not colse enough, thus caused the contradiction between the two types of law and brought great difficulties to the application of law. So at the time of legal reform in the late Qing dynasty, people of vision reemphasized the unification of the two tpyes of law. Of course, this legal tradition may also make the transformation of the legal system of The Great Qing Code and the Codes (zeli) of the Ministries to the modern department law system less difficult.

Keywords: TheGreatQingCode,theCodes(zeli)oftheMinistries,Link- up,standard

 

top

The Promulgation of The Great Qing Code in 1743

Chen Chong-Fang

Abstract

Through the existing archives of The Great Qing Code, we could clarify that The Great Qing Code’s details and process of compilation, writing-out, print, and publication during the period of 1736 to 1743. By doing so, we could correct some misconceptions of The Great Qing Code.

The preconceived idea of The Great Qing Code is to be issued all over the country at 1741. However, the actual compiling process of The Great Qing Code should be at 1741. And the accomplishment of writing- out of The Great Qing Code should be at 1742. At 1743, the printing process of The Great Qing Code was fulfilled. Througu the transmission of The Great Qing Code from stratum to stratum, The Great Qing Code was popular throughout the country in a year.

After clarifing this topic, we could propose the possible answer about the dispute of the YongZhengLu (雍正律), and point out the actual issuing time of official printed books might not be compatible with the record in the official records.

Keywords: The Great Qing Code, promulgation of code in Qing Dynasty, Qing legal system, legal history in Qing Dynasty

top

Life is dear, the tael is dearer:
A Study on Displacing the Murderer in Homicide Cases in the Qing Dynasty

LI Ming

Abstract

Displacing the Murderer in homicide cases was a difficult point in trials during the Qing Dynasty. Displacing the Murderer (Dingxong) refers to a system by which the person who commits the crime does not receive punishment; someone else serves as a substitute and receives the punishment. These types of cases increased gradually from the Qianlong period. Instances of Dingxong were particularly common in armed brawls between two large groups of people, often families and lineage groups in Fujian and Guangdong provinces. The stipulations in the Qing Code were set separately for the different details in these cases. The regulations were also revised constantly based on feedback from legal practice. In general, the result of these modifications for the offence tended to increase leniency. This paper analyzes the social and judicial aspects of Displacing the Murderer cases to reveal the operations for the Qing judicial system at the local level.

Keywords: DisplacingtheMurderer(Dingxong),Brawl,Whiteduck slaughter, Governance of Officials in the Qing Dynasty

top

Human Nature, Ethical Reasoning and Legal Principle: The Past and Present of the Immunity of Mutual Concealment among Relatives

Huang Yuan Sheng

Abstract

According to the principle of legal equality, the law shall not only be free from differential treatments, but also actively encourage people to report or testify criminal offences. However, contradictorily, it seemed to be against the Human Nature to ask people turning in the criminals who are related to them. Seeking a proper solution to these interest conflicts has always been an appealing and worth pondering issue. From Han to the late Qing, the legal immunity of mutual concealment among relatives was hardly touched throughout dynasties, and kept remaining in the subsequent criminal laws of the Republic. Similarly, most of the countries in the modern world have also established comparable legislative policies as well. There shall be a pervasive interpretation to these legal phenomena. This article shall trace the origins and foundations of such legal immunity in the Chinese legal history, figuring out how did it survived for more than two thousand years and remain effective in Taiwan today; and why did PRC once abandon it after 1949 but reopen the discussion nowadays? Additionally, in the perspective of comparative law, what are the social meanings and merits of such immunity in Western and Chinese legal culture? How do we explain the related amendments and ethical transitions across Taiwan Straight in recent years? To answer all these questions, I shall reconstruct several historical facts to restore the evolving process of the norms. Furthermore, I shall also interpret the theoretical basis, historiographical meaning and epoch significance underneath those historical facts.

Keywords: immunity of mutual concealment among relatives, right to refuse testimony, criminal code of the late Qing, criminal code of ROC, Qing Li Fa

 

top

Knowledge Transition and State Innovation:

Zhang Junmai’s Study on the Transformation of Representative System in Europe, 1919-1921

Chen, Hui-Fen

Abstract

After World War I, the wave of national innovation emerged in Europe. Not only newly-created countries drew constitution and laws, but also existing countries engaged to amend their constitution or laws. The common trend was the transformation of representative system. From the 19th to the 20th century, the West had been facing a knowledge transition. These new constitutions and the laws were considered as the achievements of the new theories established before the war, and attracted the attention of many Chinese intellectuals. Since the late Qing Dynasty, Zhang Junmai was a constitutionalist and he respected parliamentary system. This paper explores Zhang Junmai’s study on the transformation of representative system in Europe when he traveled to Europe from 1919 to 1921. His investigations were mainly in Britain, France, Germany, and Russia, and they represented different transformation models of representative system. He examined the elections and the operations of parliamentary politics in Britain and France, where the parliamentary politics have stood the test of war. As a result, Zhang Junmai more believed in the value of democracy. Germany eventually returned to the track of representative system after a brief Soviet revolution. The transformation of representative system in Germany was to implement the sovereignty of the people. Beside
parliament politics, Germany established the economic council, which is comprised of the representatives of capitalists and the coalition of labor union. Zhang Junmai applauded this liberalism and socialism reconcile. As for Russia, in order to carry out the socialist transformation, discarded the representatives and replaced it by the Soviets. Zhang Junmai disagreed with that. In short, Zhang Junmai’s discourse on the transformation of representative system in Europe was not only a part of spread and response of western legal knowledge before and after the 1920s among Chinese intellectuals, but also was an important stage in the construction of his own legal knowledge in his life. And then further became an important knowledge base for his Chinese national transformation program in the future.

Keywords: Zhang Junmai, representative system, Weimar Constitution, Soviet System, socialism

top

Review on the text-research on the Xingfa

Zhi Zhao, Jing

Abstract

Since the 20th century, researches on the Xingfa Zhi by scholars in home and abroad can be divided into three kinds that are the collation, the translation and annotation, and the analysation of the formation of texts, of which the achievements are plentiful. We should revalue the Xingfa Zhi and develop new topics with the consciousness of historical writing in the future. Keywords: XingfaZhi,Collation,Translationandannotation,Analysation of the formation of texts

top

A Legal Scholar: Wang Shih-chieh’s Academic Thought

LIU Meng

Abstract

Wang Shih-chieh was one of the most important legal scholars in modern China. He got the PH.D degree from the University of Paris and taught in the Peking University after returning home. He wrote a series of papers discussing the problem of transformation of modern representative system, including the development trend of women’s participation in politics, professional representative system and proportional representative system. He also paid attention to the development of the rule of law and guarantee of the individual freedom, criticized the legal system during Beiyang period. In addition, he applied the theory of the federal system to analyze China’s political situation. He expected to contribute to the development of China’s wisdom.

Keywords: WangShih-chieh,professionalrepresentativesystem,proportional representative system, federal system, consular jurisdiction

top

The Principles and the Structure of Qing’s Legal Order:

A Comment on Rights and Injustice: Collected Works on the Chinese Legal History of Terada Hiroaki

Du, Jin

Abstract

The book Rights and Injustice: Collected Works on the Chinese Legal History of Terada Hiroaki is a classic work in the study of the legal history of Qing China. By comparing oriental concept of law and the western one, Professor Terada Hiroaki presents the distinctiveness of the concept of law, the legal system and the legal order of Qing China, bringing up a new type which totally differs from the type of legal order of the modern western society. Besides, he, with an analysis framework of overall-consideration and consistence, gives a clearly-conceptual and well-logic explanation to Chinese law and legal practice in Qing dynasty, while he also bridges the gap between society and the nation and depicts a rather completed picture of the legal system and legal order of Qing. What’s more, He analyses and describes the forming principles of the legal order of Qing in a combined perspective of jurisprudence, sociology and political science, having a great eager for new theory. He not only focuses on macroscopic problems, but also has detailed discussion on microscopic problems like Qing’s land law and the concept of convention.

Keywords: Terada Hiroaki, Qing China, legal order, forming principles, structure

top

中國法制史學會、中央研究院歷史語言研究所主編

back top