::: * Journal for Legal History Studies
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第31期 Issue: 31 period
Date: 2017/06

Articles Chen, Deng-Wu A Study of Legal and Social Problems in the Dunhuang Manuscript “Tang-Pan-Ji” and the Spread of “Pan” in the Tang Dynasty
Gu Yuan Status Stake and Endorsement Request(Jiaqian): Strict Liability and Equitable Judgment in Homicide Cases Involving Mourning Apparel System in Qing Dynasty
Chiang, Chun-Hsiao A Study of the Provisions Concerning “Killing an Adulterer” in Early Qing Dynasty
Xie Jing Property has No Need to Be Sacred: A Study ofStealing “Guan Wu” in Qing Dynasty
Wu Huan Shape Dispersing but Spirit Concentrating: A Further Discussion about the Ping ZhengYuan’s Judgments in the Early ROC
Yu-Lin Chiang Human Dignity and Hsu Fu-kuan’s Ideals of Democracy
Articles & Replies Review Chan Chun-keung、Kao Tzu Hsuan Are The Ten Abominations Redeemable
Prominent Legal Figure Xu Shihong Dr. Ooba Osamu and Research on Chinese Legal History ── Taking The research on legal history in Qin and Han Dynasty as the center

 


A Study of Legal and Social Problems in the Dunhuang Manuscript “Tang-Pan-Ji” and the Spread of “Pan” in the Tang Dynasty

Chen, Deng-Wu

Abstract

This paper investigates “Tang-Pan-Ji,” a piece of manuscript revealed from Dunhuang. It was completed in the early eighth century AD and served as a critical reference when selecting official tests in Tang Dynasty. In this document, there are a total of 23 cases, where some parts of them are dual types of verdict belonging to two distinct subjects. Within the 19 examinations, one of them has ever appeared in the Japanese legal instruments, indicating a significant spread of “Pan” in the intellectual community. The Pan-Wen in Tang Dynasty provides enriched cultural and recreational activities. However, it has been ignored by academic community due to the reading difficulty and literary allusions greatly employed. Nevertheless, “Tang-Pan-Ji” offers a profusion of legal and social issues deserving investigation and analysis. This paper discusses the legal and social problems involved in the verdict of “Tang-Pan-Ji.” The articles of law and the judgment are established by highly-trained professionals under the realistic social environments, leading to the verdict of a profound influence in Tang Dynasty.

Keywords: Tang set, 100 sentences, legality, society, Pan Wen

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Status Stake and Endorsement Request(Jiaqian):
Strict Liability and Equitable Judgment in  Homicide Cases Involving Mourning Apparel System in Qing Dynasty

Gu Yuan

Abstract

The mourning apparel system became a critical factor of criminal penalty in homicide cases which happened in Qing dynasty.The principle of mourning apparel system was carried out sternly both in legislation and judiciary. After the middle period of Qing dynasty, along with emphasizing status and guiding principle in legislation, the judicial adjudication was getting more strictly in penal liability, while the mens rea and sin were neglected intentionly, which strengthened the tendency of consequentialism and objectivism of Imperial China penal law. However, the endorsement requesting system which was applied to excusable cases, vested some inherent tension force and equitable judicial space of homicide cases in Qing dynasty and relieved severe and inflexible of the penal system which was caused by overvaluing mourning apparel system and status.Above all, endorsement requesting system provided some probability of equitable justice for Chinese traditional judicial culture.

Keywords: homicide case, mourning apparel system, endorsement request (Jiaqian), strict penal liability, equity justice

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A Study of the Provisions Concerning “Killing an Adulterer” in Early Qing Dynasty

Chiang, Chun-Hsiao

Abstract

This paper attempts to explore the provisions concerning “Killing an Adulterer” by traditional Chinese law in early Qing Dynasty from 1644 to 1735. This paper will discuss the origin of these provisions and their evolution. This paper will analyze the criminal judicial cases about “Killing an Adulterer.” Through the elaboration, this paper suggests:
(a) For legislation, the provisions concerning “Killing an Adulterer” of Qing Code can be attributed back to the influence of Ming Code and the commentaries on the law edited by law scholars in late Ming Dynasty. These provisions of Qing Code were established through the legislation in 1646 and 1725. Furthermore, It is notable that a new code means “ni di (擬抵)” which was legislated in 1727. When a husband killed his wife who committed adultery, he and the adulterer’s crime and the guiltiness were readjusted under code “ni di”.
(b) For judiciary, this paper tries to discuss how the judges handle those “Killing an Adulterer” cases. By reviewing these criminal judicial archives, this paper shows that the judges did not necessarily use the provisions concerning “Killing an Adulterer” to handle these cases during this period. The uncertainty behind these cases can be related to two reasons: Firstly, the existed provisions concerning “Killing an Adulterer” are not comprehensive enough for the judges to sentence all of the “Killing an Adulterer” cases. Secondly, the bureaucracy for judiciary and legislation in Qing Dynasty, which frequently balanced the crime and the guiltiness of cases about “adulterer murder”, and continuously managed to adjust the unbalanced situation caused by legislation or judiciary.

Keywords: Qing Code, killing an adulterer, adultery, criminal judiciary, commentary

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Property has No Need to Be Sacred: A Study ofStealing “Guan Wu” in Qing Dynasty

Xie Jing

Abstract

The concept of state property nowadays is similar to Guan Wu (Official Objects) in traditional times. Law in both modern times and Qing Dynasty distinguish private property from state property/Guan Wu. Generally speaking, there were two principles in the Great Qing Code: focus on Guan Wu; punishing inside job severely. Besides, the Code had special rules to treat special Guan Wu and Za Fan. There are similar principles in Criminal Law nowadays, but the latest judicial interpretation has made things different. State property/Guan Wu has no need to be more sacred than private property, and all kinds of property has no need to be sacred. Inside job is more serious than ordinary theft. The Great Qing Code is imperfect, but it could provide reference for nowadays.

Keywords: The Great Qing Code, Law of Dao and Zei (Theft), Guan Wu (Official Objects), State Ownership

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Shape Dispersing but Spirit Concentrating:
A Further Discussion about the Ping ZhengYuan’s Judgments in the Early ROC

Wu Huan

Abstract

The Ping Zheng Yuan’s Judgments were not only administrative litigation judgments, but also fresh and vivid proclamation of governance order constructor in the Early ROC. Ping Zheng Yuan’s Judgments were less in absolute numbers, but relatively more in property case class. This “more or less” situation reflected the reality of political design and social life in that time, and also implied Ping Zheng Yuan’s activity selection and governance orientation. Ping Zheng Yuan’s Judgments shared crude form, concise style, and simple reasoning, while their making process were complete, division were neat, details were listed well. This “simple also tedious” characteristic not only retained attachment to the traditional legal culture, but also characterized a tendency of the legal system modernization. Ping Zheng Yuan’s Judgments had no case-law effect in the Beiyang Government period, and were declared genuine invalidity by the Nanjing Government, but they had real legally binding and substantial influence in the administrative trial practice in the Early ROC. and with a fair degree of independence and autonomy. This “to be or not to be” state meant that the experience and wisdom of Ping Zheng Yuan’s Judgments had shared the echoes beyond time and space.

Keywords: Min Gao Guan, Ping Zheng Yuan, Ping Zheng Yuan’s administrative litigation Judgments, Governance Order, Governance wisdom

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Human Dignity and Hsu Fu-kuan’s Ideals of Democracy

Yu-Lin Chiang

Abstract

It is well known that human dignity is the fundamental value of Taiwan’s liberal democratic constitutionalism. Tracing back to the 1950s, the Neo-Confucians Hsu Fu-kuan (1904-1982) has already pointed out that human dignity is the key to resolve the problems of Chinese democratic politics. On one hand, Hsu Fu-kuan praised the Confucian theory of human nature, criticized the Chinese emperor’s dignity. Meanwhile, he stressed several essential ideals of constitutionalism, such as democracy, human rights, the rule of law and so on, to reinforce his points on the other hand. This article shall discuss Hsu Fu-kuan’s ideals of human dignity anddemocracy, figuring out how these influential ideas penetrate Taiwanese liberal democratic constitutionalism nowadays.

Keywords: Hsu Fu-kuan, human dignity, emperor’s dignity, Confucianism

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Are The Ten Abominations Redeemable

Chan Chun-keung、Kao Tzu Hsuan

Abstract


The redemption system in Tang dynasty consists of Status privilege Redemption, Physical factor redemption and Crime redemption, each with different conditions and penalties to apply to. In the redemption system in Tang dynasty, it has been discussed but still left space to further explore that whether the redemption system can be apply to Ten Abominations. We can break it into three divisions to discuss according to the related laws.

 

Firstly, we can start with the four laws of Negotiation, Intercession, Reduction and Redemption and the special treatments for government officials and their relatives. The essence of the four laws is the same as their writing logic. After comparison, it is specifically stated that the laws of Negotiation, Intercession and Reduction can not apply to Ten Abominations. Since the law of Redemption has not mentioned the application, it can be deduced that there is no general regulations to rule out its application to Ten Abominations. Secondly, referring to Ming Li of Tang Code, it states, “Once the concubines of officials above the fifth rank commit Non-Ten Abominations or crimes beneath the crime of exile, Redemption could apply to them. They would not be limited to the redemption system if the redemption could not suit them.” It expresses Redemption can only apply when the concubines of officials above the fifth rank commit Non-Ten Abominations. Then it further states in The Laws of Negotiation, Intercession and Reduction-Redemption, those who could not suit the law of redemption would not be confined to the redemption for the concubines of officials above the fifth rank. The crimes that could not be applied to Redemption exclude Ten Abominations. Hence the separate explanation is needed. Lastly, according to the regulation “When criminals are senior, underage or diseased” from Ming Li of Tang Code, it verifies one can be redeemed after committing Ten Abominations in Tang dynasty. A dialogue in it has mentioned “In the former law, Redemption can apply to some of Ten Abominations but not all.” The former law here refers to The Laws of Negotiation, Intercession and Reduction-Redemption. From “Redemption can apply to some of Ten Abominations but not all”, we can deduce some crimes from Ten abominations can be redeemed. There is no rule on non-redemption for all Ten Abominations.

 

As for which crimes from Ten Abominations can be redeemed and which not, it requires comparison of the crimes excluded from the law of Redemption. If the crime from Ten Abominations is excluded from the law of Redemption, then Redemption would not suit the crime, and vice versa. The four crimes from Ten Abominations- plotting a rebellion, planning great betrayal, plotting treason and evil disobedience are all death penalty excluded from the law of redemption, and the criminals’ relatives would receive collateral punishment of exile. These four crimes are unredeemable. Other crimes such as “poisoning with venomous insects” from the crime of immoral behaviors would not be lessened under an amnesty and the criminals would be exiled. “Mesmerizing or harming one’s grandparents and parents in order to woo” and “not mourning properly after one’s grandparents or parents are dead” from the crime of lack of filial piety are also excluded from the law of redemption. Above are those from Ten Abominations that are unredeemable. Those from Ten Abominations that can be redeemed, therefore not excluded from the law of redemption can be seen in the crimes of immoral behaviors, great irreverence, lack of filial piety, improper behavior, unrighteous behavior and incest. These redeemable crimes from Ten Abominations cause less actual harm but should be severely condemned in a moral sense. Considering from a reality perspective, these crimes that cause less harm would not suit severe punishment and can even be replaced with Redemption. However, through the law of Ten Abominations, it can title the criminals with a heinous name as moral condemnation, which represents the balance between etiquette and punishment stricken by Tang Code.

Keywords: Ten Abominations, Negotiation, Intercession, Reduction, Redemption

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Dr. Ooba Osamu and Research on Chinese Legal History ──
Taking The research on legal history in Qin and Han Dynasty as the center

Xu Shihong

Abstract

Dr.Ooba Osamu is a famous Japanese scholar who studies Chinese history. The ranges of his research extends to three aspects, the legal history in Qin and Han Dynasty, the science of inscribed wooden slip and the history of communication between China and Japan. The research on legal history in Qin and Han Dynasty 秦漢法制史研究, The research on absorbing Chinese Culture in Edo period 江戶時代汲取中國文化之研究, and The research on inscribed wooden slip in Han Dynasty 漢簡研究 are masterpieces in these three fields. His basic understanding of Chinese legal history is that the object of study is the history of law and system. We study it in pursuit of the restoration of the law and historical performance that the governing body regains its vitality. In the research method should be noted that we should conduct comparative study on the basis of knowing the subject, rather than view history with today’s knowledge; therefore, when we research, we take evidence first. Dr. Ooba has made great achievements in the field of legal history of Qin and Han Dynasty through researching on the system of government and bureaucracy, marking off Chinese historical epochs by researching the evolution of system of law and statutes, gathering lost laws and statutes of Han Dynasty, figuring out the legislative procedure of statutes, discriminating the connotation of Budao 不道 and defining its concept, recovering the original appearance of imperial edicts. His paper of the concept of Budao in the law of Han Dynasty 漢律中的不道概念, the book of edicts and edicts inscribed on the cracked slips which unearthed in Juyan 關於居延出土的詔書冊與詔書斷簡, and the form of edicts in Han Dynasty 關於漢代詔書的形態 are influential essays and his book of The research on legal history in Qin and Han Dynasty is an important reference book on the study of related issues.

Keywords: Ooba Osamu, inscribed wooden slip in Han Dynasty, positivism, Legal history of Qin and Han Dynasty

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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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