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第32期 Issue: 32 period
Date: 2017/12

Articles Chan, Chun-Keung Discussion on the‘Time’ in the Tang Code
Chen, Yu-Mei Cross boundaries, crime in passion and legal order: Laws and social issues in the Taiwan frontier during Emperor Qianlong’s ruling
Qiu, Tang Legal Normative Analysis on the LegalOrder of Foreign Activities in Qing Dynasty: Focusing on Qianlong Period
Li, Zong-Yu The Great Qing Code•Criminal Law•Fights and the Imagination of Harmonious Orders: The Debt Disputes and Violence among Immigrants in Areas of Sichuan, Shanxi and Hubei in 19-Century China
Liu, Kai-Yue The Negative Influence of Legal Modernization on Women── Take the widow’s rights in Inheritance case as an example
Ma, Hai-Feng Ius est ars boni et aequi: A texual research on a Roman legal maxim
Articles & Replies Review Author: Heinz Mohnhaupt/Translator: Lee, Chun-Tao Comparative Law in Mittermaier’s “Kritische Zeitschrift für Rechtswissenschaft und Gesetzgebung des Anslandes” (1829-1856)
Prominent Legal Figure Zhao, Jing Comment on the Research on Oriental Legal History by Michisaburo Miyazaki

 


Discussion on the‘Time’ in the Tang Code

Chan, Chun-Keung

Abstract

This article aims to analyze the ‘Date’ ‘Year’, and ‘Daytime’ ‘Nighttime’ concepts and their values under the law of Tang Dynasty, and observe any behaviors that against the work & rest schedule established by the government. The division of time and the values added to it reflects the authority of a government.The legal meaning of ‘Date’ and ‘Year’ was not entirely based on the change of natural time.The ‘Hundred Quarters within A Day’ concept reviewed the government had the total control on its definition and the absolute power on its setting.The ‘360 Days a Year’ regulation relate to the swap between ‘Punishment and Labour’ concept in the legal system. The legal demarcation of the day and night involves the government’s demands on the people's daily routines, while the natural night, the statutory night, the curfew night were not in fact the same.


This article focuses on four kinds of nocturnal crimes, such as curfew, enter private premise at night time without reason, nocturnal Buddhist worship, and night gang robbery that violate the government's rules and routines.Tang Code formulated that it was an offense if someone was found wandering in the street during night time, and it applied not only to ordinary people but also included officials.Tang Code stated clearly that person would be found guilty if entering others’ premises without reason at night, but not in the day time and the owner could kill the suspect instantly without being prosecuted. All these show the law was intended to protect personal safety, maintain social stability, but not to protect the residence from being invade. The two important time elements - “Night” and “Instant” were originated from the “Han Law”. “Sù xiāo (宿宵)” refers to the Buddhist worship held at night, which seems to be related with Maitreya beliefs, Moonlight Child, and often involved in the riots. The term was found in the Wu Hou of the Tang Dynasty. The government issued order frequently to ban this type of events during the Xuan Zhong period, and classified such events same as Ten Abominations and murder cases to indicate its degree of seriousness from the official point of view.“The Night Gang Robbery” refers to rob people in gang at night time, and this would cause great panic to the public and their target would be the whole village instead of one or two families.This crime constituted a serious damage to the social security; therefore government issued a new rule to punish these criminals.

Keywords: Tang Dynasty, Tang Code, Legal Time, Curfew, Sù xiāo, The Night Gang Robbery

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Cross boundaries, crime in passion and legal order:
Laws and social issues in the Taiwan frontier during Emperor Qianlong’s ruling

Chen, Yu-Mei

Abstract

This study analyzes the problems of social security issues and application of judicial trial for the results of love conflicts among cross ethnic groups in the cross Taiwan frontier. The parties of the three cases attempted from several ways to avoid being convicted, to privately reconcile with money, or to mislead the direction of handling the case. This also showed the implement of rule of law was really enforced in that area under Qing Dynasty’s judicial system, and the effect of intimidation was enough for people to obey the law. The criminals knew that the state law was hard to be tolerated and they intended to escape from guilty.

 

The three cases of trial process clearly revealed the trial procedure in early Qing Dynasty, which attached to the principle of evidence- the witness of confession, the defendants’ words, and the evidence. The results of the judgement could also be seen as the effect of practice of national laws, police training, enlightenment, and governance. All criminals were sentenced and punished from the viewpoint of crime, principal or accomplice. The legal design and punishment for “women” crime also reflected the value of Han Chinese.


Due to the difference of national law and Shu Fan customary law, it is questionable whether the cultural differences could achieve “affair and ration are alike” and “the crime being adapt to the punishment” in the process of judicial proceedings.


This may reflect the difficulty of internalization and identity for Shu-Fan under Qing’s ruling.

Keywords: Cross boundaries, crime in passion, legal order, Emperor Qianlong’s ruling, Taiwan frontier

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Legal Normative Analysis on the LegalOrder of Foreign Activities in Qing Dynasty:
Focusing on Qianlong Period

Qiu, Tang

Abstract


The legal order of foreign activities in Qianlong Period is a complete and tight-knit legal framework including the Collected Statutes in the Qing Dynasty, the Qing Code and the statutes of each administrative organs such as Libu and Lifanyuan. In all the laws and regulations, the Collected Statutes in the Qing Dynasty are the most constitutional and blanket legal norms. The statutes of each administrative organs look like the implementing rules for the Collected Statutes in the Qing Dynasty. While the Qing Code focuses on the economic sphere, and presents as the criminal law and domestic law. This legal system is quite complicated and multifold. The Collected Statutes in Qing Dynasty and the statutes of each administrative organs emphasize the rites. From these kinds of regulations, we can see the Qing dynasty still keeps the pride of the Celestial Empire and the pioneering ambitions. However, in the Qing Code, the Qing dynasty maintains a certain level of self-restraint and contractibility. Obviously, the Qing dynasty has been aware that its governance has the boundary. The Qing dynasty separate all the foreign countries into four types, which includes the dependent feudatory such as Korea, the vassal states such as Kazak, the countries who have the mutual trade with China, such as the West and the countries who has signed the treaties with China, such as Tsarist Russia. Directed at different kinds of foreign countries, the Qing dynasty has different administrative organs to manage the foreign affairs. What’s more, the applicable laws are also different.

Keywords: The Order of Foreign Activities, Legal Norms, Collected Statutes in the Qing Dynasty, Statutes of Libu, the Qing Code

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The Great Qing Code•Criminal Law•Fights and the Imagination of Harmonious Orders:
The Debt Disputes and Violence among Immigrants in Areas of Sichuan, Shanxi and Hubei in 19-Century China

Li, Zong-Yu

Abstract


The 19-century China was chaotic and inundated with rebellions. The daily violence was intensified. It’s worth discussing over how the people of the time treat violence and take advantage of violence to respond to the changesand threats in living environments.

 

In this paper, the common fights in daily social life were employed toprobe into the attitudes towards the violence. First, debt disputes and fight cases among immigrants in the areas of Sichuan, Shanxi and Hubei recorded in the Selected Compilation of Historical Materials about Society in the Routine Memorials to the Ministry of Justice During the Jiaqing Reign, Qing Dynasty are investigated to observe the significant violence phenomena in the particular circumstances, such as frontier society and further connect them with the common daily violence. Second, from the perspective of legal culture, it separately discussed over how local governors practice legal norms and the significance of public legal behaviors (false accusation of causing bodily harm) to understand the social attitudes towards fights and its application. In this part, Fan shan Pi pan (樊山批判) written by Fan Zengxiang in late 19th century was used. The cognition, memory and attitudes towards civilian disputes, fights and violence of 19-century China can be dated back to ancient Chinese cultures, such as collectivism, harmonious views, benevolent policies, etc., above which were repeatedly demonstrated by the emperors and senior bureaucrats. The foregoing elements, i.e. nation and society, emperor, officers and citizens, political thoughts, legal thoughts and common sense of civilian laws, social circumstances as well as other factors create a space for tolerance of violence; it can be said that fight and violence were deeply rooted in the daily order of 19-century China.

Keywords: Fights, Violence, Debt Disputes, Qing Dynasty, Areas of Sichuan, Shanxi and Hubei

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The Negative Influence of Legal Modernization on Women──
Take the widow’s rights in Inheritance case as an example

Liu, Kai-Yue

Abstract

Chinese traditional law discriminates against women, the Civil Code of the Republic of China gives women equal rights, This paper uses two research methods: comparative study of legal provisions, and analysis of grassroots litigation files. In the context of the modernization of the law, a fact is ignored: the protection of women in traditional law, the Civil Code is no longer retained. Such as the right of the widow to manage the family property, the right of the widow’s property to inherit, and the widow’s right to relieve the adoption relationship. The intention of this paper is to show that the traditional Chinese law is complex, the attitude of women is also complex. The traditional Chinese law should not only be considered to discriminate against women.

Keywords: Inheritance disputes, Female rights, Legal modernization, Widow rights, The Civil Code of the Republic of China

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Ius est ars boni et aequi: A texual research on a Roman legal maxim

Ma, Hai-Feng

Abstract

Ius est ars boni et aequi is one of Clesus’s maxim. As far as this dictum is concerned, Ius means law, ars art, and boni et aequi just and appropriate. The law is not only a kind of art, but also has its own internal system and a characteristic that differs in different people, different time and different places. It is to highlight the importance of men and the instrument rationality of the law by emphasizing that law is art; while the boni et aequi is not only the internal value pursuit of the law, but also is the norm with which the Roman jurists valuated whether the regulations were good or not. This maxim has a quality of equality in itself, and the equality is an important thing which gave the Roman law a strong life. This maxim is a combination of the ideal and the reality, and it indicated that Celsus and other Roman jurists’ quality of having the starry heavens in their minds and putting their feet on the ground. Because of this, this maxim has been handed down to now.

Keywords: Celsus, Ius, Ars, Boni et aequi

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Comparative Law in Mittermaier’s “Kritische Zeitschrift für Rechtswissenschaft und Gesetzgebung des Anslandes” (1829-1856)

Author: Heinz Mohnhaupt
Translator: Lee, Chun-Tao

Abstract


This article investigated the legal journal “kritische Zeitschrift für ausländische Rechtswissenschaft und Gesetzgebung” founded by Mittermaier. The author explicated firstly the historical backgrounds for disciplinary periodicals. He pointed out that this medium had close relationship with the differentiation of academic professions resulting from the Enlightenment. Professional journals effectively facilitated the circulation of informations, formed a group of discourse between editors and readers, and documented the dynamic development of a certain profession. They were the embodiment of “Geist in der Zeit ” in terms of Hegelian philosophy. The author further explicated the academic inclination of Mittermaier, the overall style of the “Kritische Zeitschrift ” and its contributions to studies in comparative law. With a pragmatic orientation in his researches, Mittermaier was aware of the fact that European and American lawyers often had deficient knowledge of foreign legal developments. He believed that the horizon of German legal science should be broadened. With his academic engagement, Mittermaier provided a huge amount of articles for the “Kritische Zeitschrift ” during its publication period, which lasted for 28 years. He established a network of informations among editors and thereby enhanced the exchange of legal informations between European and American countries. The chief goal of “Kritische Zeitschrift” was to realize the idea of the community of European legal science in order to increase its vitality. To be more concrete, studies in comparative law can promote efficiency of legislation of individual countries. As far as the research method is concerned, this journal claimed that the method of comparative natural science should be borrowed as a model. With this method the unity of European legal science can be achieved, but at the same time regional characteristics of individual countries can be maintained on the level of legislation and positive law.

 

Keywords: legal journals, comparative law, legislation, European legal science, German legal science

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Comment on the Research on Oriental Legal History by Michisaburo Miyazaki

Zhao, Jing

Abstract

Dr. Michisaburo Miyazaki is the pioneer in the field of legal history in modern Japan, whose main research is Japanese legal history and comparative law. There are two stages in his study on oriental legal history. He mainly compares the Japanese legal institution with the Chinese in the first stage, and tries to do the research on Japanese legal history through the comparative East-Asian linguistics in the second one. This change in his research method has led to changes in the object of studies and the problem consciousness. However, his style of study has not changed. As a jurist who has studied in Germany, his thinking may be influenced by the training of modern social science. But he does not apply modern legal concepts and the modern legal system from the West mechanically to the ancient legal institution in the East. He is a successor of the tradition created by the Japanese Sinology and the research on Japanese ancient civilization.

Keywords: Michisaburo Miyazaki, Oriental legal history, Style of study

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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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