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第30期 Issue: 30 period
Date: 2016/12

Articles Chan, Chin-Hui Qin and Han Dynasties Unearthed Legal Documents “shù rén (common person)”
Lee, Wangen The Derivation of Judicial Cases of Spring and Autumn Annuals Judged by Dong Zhongshu’s Critical Issues
Yen, Ju-hui A study of the Effects on Etiquette and Legislation of Sino-Japanese Cultural Communication: Finding the Origin of the Law of Mourning During the 8th and 9th Centuries
TANII Yoko A Study of the Development and Collapse of Jurisprudence among Chinese Intellectuals during Ming and Qing Dynastie
Chen Yantao Women’s Baogao system in Qing Dynasty Recorded in Mianning Archives
Tai, Tong-Schung The Modernization of the Surname of Child
Articles & Replies Review Zheng Zhi Why is the sorcery criminal?——on causality of Qing Dynasty sorcery crimal and its legal application
Articles & Replies Review Wu, Jing-jie Some Discusses About the Law of Finding Lost Objects in Traditional China
Prominent Legal Figure Zhao Jing Comment on the Research on Oriental Legal History by Hiroyike Chikulou

 


Qin and Han Dynasties Unearthed Legal Documents “shù rén (common person)”

Chan, Chin-Hui

Abstract


This paper discusses the Qin and Han Dynasties unearthed legal document “shù rén (common person)”. The exact identity of “shù rén (common person)” comprises “males (over 56 years old, exempt from military service, but serve corvee)”, “males (over 15 years old, exempt from military service, but serve corvee)”, “females (over 15 years old)”, pardoned criminals, pardoned slaves. Their common is that they are not required to perform military service. So we speculated that the difference between “Shi Wu (soldier)” and “shù rén (common person)” is “Shi Wu (soldier)” required military service, and “shù rén (common person)” without military service. Early Western Zhou Dynasty “shù rén (common person)” means adult males. Comparison with the “shù rén (common person)” of the Western Zhou, Qin and Han Dynasties, Qin and Han Dynasties “shù rén (common person)” comprises “females (over 15 years old)” that is symboled to enhance the status of women. As well as Qin and Han Dynasties “shù rén (common person)” comprises “pardoned criminals” and “pardoned slaves” that is symboled social stratification upward
mobility without being impeded.

Keywords: shù rén (common person), shì wǔ (soldier), criminal, slave, identity

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The Derivation of Judicial Cases of Spring and Autumn Annuals Judged by Dong Zhongshu’s Critical Issues

Lee, Wangen

Abstract


The Han scholar, Dong Zhongshu董仲舒, adopted the Confucian classics to judge judicial cases and thus has very exceptional position in Chinese ideological and legal system history. Even lots of scholars have studied his ideological thoughts; however, the sources that make up of the Judicial Cases of Spring and Autumn Annuals春秋決獄 have not been properly explored. This article provides the evidence that Dong has full knowledge of Confucian classics and legal codes of Han dynasty. When retired, he was over seventy and could get the pension from the Han dynasty. In addition, the contents contained in the Judicial Cases of Spring and Autumn Annual should be derived from routine meetings in the imperial court, special conventions summoned by the emperor, the administration experience as marquis’ prime minister, the consultations of unsettled cases, and the teaching practices. After analyzing the wordings of the six cases available at present, the contents should be the illustration of
real cases instead of fictitious ones.

Keywords:
Han scholars, Dong Zhongshu董仲舒, Judicial Cases of Spring and Autumn Annuals春秋決獄, Judging cases by the Confucian classics經義決獄, Tianren sance天人三策

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A study of the Effects on Etiquette and Legislation of Sino-Japanese Cultural Communication:
Finding the Origin of the Law of Mourning During the 8th and 9th Centuries

Yen, Ju-hui

Abstract

The law of mourning was used in the age of the Edo bakufu until the early of Meiji period in Japan, but studies in search of its cultural origin from ancient history is little. This study intended to find the origin of law of mourning on the T’ang Code and Yōrō Code, and the result found that 10th century was the key time for these two Codes to merge into the law of mourning. The source concepts of bereavement leave and uncleanness were not only Japanese, but also from the Tang Dynasty. The traditional legislation and etiquette rules of China and Japan integrated into one new classical culture, and henceforth continued growing in Japan until today.

Keywords:
Tang Code; Engi-Shiki; legislation; etiquette; uncleanness; bereavement leave; law of mourning; cultural exchange

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A Study of the Development and Collapse of Jurisprudence among Chinese Intellectuals during Ming and Qing Dynastie

TANII Yoko

Abstract


China has a long history in compiling and studying the country's legal codes. Only a few civil servants, however, engaged in these activities, because the law was regarded as a necessary evil in order to punish the population in view of the Chinese tradition. Even if the study of law should be thought as one of necessary knowledge, it did not have a significant meaning among intellectuals and the government did not treat the legal professions with courtesy. But, after the middle of the Ming Dynasty, some bureaucrats and intellectuals tried to combine the law with Confucian works in order to improve the value of its study. Finding sublime intentions of legislators in the texts, they served not only a practical interpretation of the texts but also thought it as the embodiment of the spirit of government. In this way justice and benevolence were clearly highlighted, that is, the law should be a means not of punishing, but of protecting the population. The movement increased the value of the law as a research subject and ended in yielding a lot of meaningful relevant works. Moreover, after the establishment of the Qing Dynasty, the government demanded a stricter enforcement of the law. The number of the legal professionals increased. Through producing works that were easy to understand for a wide range of the intellectual class, they contributed to the spreading of a positive view of this study and to make it 154 popular. After the middle of the Qing dynasty, however, it became difficult even for the legal professions to recognize its system of law, because of a process of extreme fragmentation in the field of legal studies. As the result, the value of studying law was crucially demoted among bureaucrats and intellectuals and the study of law became made no further progress. Hence the intellectuals’ class could not share with the positive recognition of this study and it was not regarded important as an academic subject in the premodern
China.

Keywords:
Study of Law, Lü Tiao ShuYi, Lei Menglin, Shen Zhiqi, Wang Huizu

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Women’s Baogao system in Qing Dynasty Recorded in Mianning Archives

Chen Yantao

Abstract


The “Baogao” system of the Ming and Qing dynasty was also known as representative action system, which could be traced back to the period of “ancient China’s regime of the nobility’s privilege of not going to the court personally in a trial ”. The “Baogao” system was named by many scholars as China's ancient “litigation” system. The subject of the litigation included students, the young and the old, the disabled, women, which was stipulated in both the national law and the local condescendence rules. Making a study of the numerous women litigation cases in Mianning Archives, the writer finds that some cases complied with the “Baogao” system at the time, but some others were not in accordance with the system. These cases included litigation without a Baogao, the Baogao was not consistent with the system, a woman and a man were co-plaintiff, and so on. The writer intends to have a fundamental interpretation of those cases. There existed huge differences in time and space in the judicial practice of the Qing Dynasty. The writer believes that at least in Mianning prefecture of the Qing Dynasty, the basic judicial practice was more concerned about the entity of the case than the procedural review of the women who had the qualification of taking lawful action.

Keywords:
Mianning Archives; women litigation; representative action;
legal consequences

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The Modernization of the Surname of Child

Tai, Tong-Schung

Abstract


To ensure the family surname will be carried to future, the marriage type can be categorized into two types to rule the surname of the children. The first type is wedlock marriage and the second type is uxorilocal marriage. The surname of the children should follow father’s surname in the first type and should follow mother’s surname in the second type or to follow father’s surname if there is a predetermined agreement by the parents. The wedlock marriage can also be classified into two types: wifemarriage and concubine-marriage. The child born under wedlock marriage will carry father’s surname. As for the child born out of wedlock marriage will be treated as illegitimate child and should follow mother’s surname. As the family law of the Civil Code legislated in 1930 was influenced by the concept of equality of the sexes and independent character, the surname of the children was actually a compromise between new and old thoughts. In article 1059, child under wedlock marriage should follow father’s surname (item 1) and child under uxorilocal marriage should follow mother’s surname or to follow father’s surname if there is a predetermined agreement. The concubine-marriage was removed as it goes against the rule of equality of the sexes; however, the uxorilocal marriage was still left for the purpose of carrying family surname to the future. In 1985, the family law of the Civil Code went for another revision but the contents still did not fully adopted the concept of equality of the sexes. Later in 2007, article 1059 of the family law was substantially revised and regulated: “Parents should agree in writing before filing the child’s birth registration regarding if the child assumes the father’s or mother’s surname.After filing the child’s birth registration and prior to the child reaching maturity, the parents may in writing change the child’s surname to either the father’s or mother’s.Where the child reached his/her maturity, he/she may change his/her surname to either the father’s or mother’s surname.Either the parents or the child can petition in the interest of the child for a judicial declaration to change the child’s surname to either the father’s or mother’s surname.” Above regulations also apply to the surname of child out of wedlock marriage and adopted children. The family law in 2008 failed to regulate the rules regarding how to settle the surname issue if the parents had different opinions. Consequently, before the revision of the Civil Code, the article 49 of Household Registration Act regulates that: “the applicant can decide the child to be registered with the father or mother's surname upon taking a draw.” In 2010, the Legislative Yun made more revision of the article 1059 of the Civil Code by stating that: “Parents should agree in writing before filing the child’s birth registration regarding if the child assumes the father’s or mother’s surname. Without such an agreement or when the agreement cannot be made, the surname should be determined by drawing lots at the Household Registration Office.” Nevertheless, if there is any surname disputes for the child born out of wedlock or adopted child, the legislators failed to add on the “determined by drawing lots” rules as applied to the legitimate child. This negligence of the law should be corrected as soon as possible.

Keywords:
Legitimate child (child born under wedlock), Illegitimate child(child born out of wedlock), Adopted child, Surname of thechild, Equality of the sexes, Independent character

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Why is the sorcery criminal?——on causality of Qing Dynasty sorcery crimal and its legal application

Zheng Zhi

Abstract


The Great Qing Code took provisions about sorcery crime charges using specific doctrine of legislative technology, such as “worst offence”, “sorcery ban”, “homunculus fallacy”, “killing blood collection” and “manufacturing and poison to kill”. Zhu Qingqi of Qing Dynasty included about forty cases related sorcery in his Three criminal case assembly. There is the key of problem about how the causal fact in witchcraft cases turning into the causality of law, and logically proving corresponding criminal responsibility in legal reasoning about convicting witchcraft, in which analogical reasoning played a very important role, and this method could also be put in common case reasoning of Qing Dynasty. Body thinking mode was the basis of thought behind analogical reasoning method, which origining the thinking pattern containing the witchcraft itself: Like interpretation of law, this kind of thinking mode had an antiformalism dangerous tendency, which is worthy of our today’s legal construction to learn and watch.

Keywords: The Great Qing Code, The sorcery crime, causality, analogicreasoning, Body thinking mode

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Some Discusses About the Law of Finding Lost Objects in Traditional China

Wu, Jing-jie

Abstract


This article discusses the development about the law of Finding Lost Objects in traditional China. Why people can get reward when found lost objects? When this law be made? How government and people think about this law? As this article says, this law origins from Pre-Qin period, and had a big change in Ming period, not only defined the reward by law, but also transfers from property law to monetary obligation. This change reflects the view of monetary obligation and the lost objects of the Ming government.

Keywords: Finding Lost Objects (De yishi wu), Monetary Obligation(Qianzhai), rewards

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Comment on the Research on Oriental Legal History by Hiroyike Chikulou

Zhao Jing

Abstract


Dr.Hiroyike Chikulou is a scholar who was active in academia between the Meiji - Taisho period. He collated a text named 倭漢比較律疏 and an edition of 唐六典 by Konoe Yiehiro, and published a series of monographs such as 東洋法制史序論 and 東洋法制史本論 , which were highly praised at that time. Dr. Hiroyike is one of pioneers in the field of the oriental legal history, and develops three manners of his own on the research, which are concentrating on explaining words and phrases, possessing the consciousness of comparative history of law and holding the intent to cope with the current situation. Besides, Dr. Hiroyike emphasized that there were differences between China and Japan, and the Japanese culture had the superiority to the Chinese, which was a common view of some Japanese scholars at that time.

Keywords: Hiroyike Chikulou, Oriental legal history, View on Japanese culture supremacy

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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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